HABIB HISHAM PANDIT Vs. STATE

JUDGEMENT

(1.) PETITIONER has been initially taken in custody on 14/15 Sept. 2002 in FIR No. 109/2002 u/s 7/25 I.A. Act, registered at Police Station M.R. Gunj, Srinagar. During the punitive detention, he was detained under Sec. 8 of J&K P.S. Act by District Magistrate, Srinagar under his order No. DMS/PSA/76 dated 31.10.2002. This preventive detention order and the consequent detention is under challenge in this petition. Though, the order is challenged on number of grounds but the counsel has urged following two grounds in support of his submission to assail the order of detention.

(2.) FIRST , the counsel submits that the material like copies of grounds order of detention, dossier etc. has not been furnished to the detenu and thereby the detenu is prejudiced. Second, that the petitioner moved representation to the government, which representation has not been considered either by the detaining authority or the Government and thereby his constitutional and statutory right has been violated. Mr. M. M. Khan, AAG, refutes both these grounds and submits that the grounds of detention incorporated necessary details of whole range of activities of detenu and thereby he is not prejudice, more so when the detenu states that he has made representation against the detention order. Regarding the second contention, the counsel submits that the representation is not born by the detention record and therefore, the allegations of non -consideration of the representation is denied. The counsel further submits that reply filed by the District Magistrate, Srinagar, among other things contains the information as submitted above. Para 11 of the petition reads as under : -

(3.) A combined reading of the detention order and Para 6 of the counter as reproduced above would reveal that while the detaining authority District Magistrate speaks of his satisfaction being drawn from the records received from SSP, Srinagar, a fact not denied or refuted in grounds, yet it is stated that details of the whole range of prejudicial activities of the detenu have been given in the grounds of detention. Mere statement of giving the details in grounds is not same thing as supplying of material referred in the grounds. Whereas, the subjective satisfaction for the detention in question is drawn by Detaining Authority on his own showing from the records made available to the detaining authority by the SSP, Srinagar, yet in counter, it is no where stated that such records were either supplied to the detenue or any material whatsoever was given to him. The petition allegations that the detenu was not provided the dossier, report etc. (spoken of as records by the detaining authority), is unrebutted. Similarly, the allegations that the material referred in grounds and considered by the detaining authority for the detention in question has not been at all supplied to detenue is equally not refuted, notwithstanding that the counter has been filed by the detaining authority. The detention record produced, shows that for the detention in question a report/dossier of SSP, Srinagar is on record. Besides the grounds show that petitioner has been attributed subversive activities and involvement in lobbing number of grenades at various times on different dates within city of Srinagar. Such number of incidents obviously, the basis of detention referred in the grounds are based on material/document, This has emerged from the records of the SSP, Srinagar supplied to detaining authority and the basis of detention in question. Seen thus, the detenue cannot be said to have been communicated the grounds within the meaning of Article 22 (5) of the Constitution and section 13 of J&K P.S. Act, 1978. In Naseer Ahmed v. Dy. Chief Secretary Home and Anr., (1999 SLJ 241), a Division Bench of this court has observed.