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2000 DIGILAW 118 (JK)

Shakeel Ahmad Mir v. State Of J. &K.

2000-06-02

SYED BASHIR-UD-DIN

body2000
1. District Magistrate, Srinagar, respondent No. 2, passed detention order DMS/PSA/127 dated 30-11-1999 (Annexure-P3) under Section 8 of the Jammu & Kashmir Public Safety Act 1978, where under one Shakeel Ahmad Mir on whose behalf this H.C. Petition, writ petition has been filed, is detained with a view to prevent him from acting in any manner prejudicial to the maintenance of the security of the State. This order is challenged in this petition on number of grounds. 2. Counter affidavit has been filed on behalf of respondents by District Magistrate, Srinagar, respondent No.2. The counsel for petitioner submits that challenge to the impugned detention order is confined only to two ground. First, the order is vitiated for non application of mind and has been passed in a mechanical fashion. The detaining authority has not been made aware of the fact that the detenue who had been taken in custody on 20-07-1999 in connection with FIR 167/99 u/s 7/25 I.A. Act by Police Station M.R. Gunj, Srinagar was released and admitted to bail on 02-08-1999, by the competent Court and while out on bail and enjoying his freedom he was taken in preventive custody on 08-12-1999. Despite being out on bail for over four months, the detaining authority has in the grounds as also in the reply mentioned that the petitioner was in police custody when he was taken in preventive custody and handed over to jail authority at Udhampur for confining him under the detention order. Next counsel further submits that the detenue is an illiterate person who cannot understand English language. The grounds of detention were supplied to him in English not understood by and intelligible to him. No transcript copy in Urdu or Kashmiri accompanied the grounds. The detenue has been adversely affected and prejudiced to make a representation. 3. Government Advocate, Mr. M. Amin, submits, that the detaining authority has applied mind and drawn subjective satisfaction while passing the detention order, but is candid enough to admit that the specific allegation of the petitioner having been on bail as referred in para 4, 8 and 9 of the petition is not specifically refuted in counter. 3. Government Advocate, Mr. M. Amin, submits, that the detaining authority has applied mind and drawn subjective satisfaction while passing the detention order, but is candid enough to admit that the specific allegation of the petitioner having been on bail as referred in para 4, 8 and 9 of the petition is not specifically refuted in counter. However, he has produced detention record and concedes that the record does not even prima facie displace the above petition allegation of detenue having been bailed out and while out on bail was taken in custody and yet in the detention order it is shown that on the date of detention he was in punitive custody. The counsel further submits that the grounds of detention were served on the detenue who was explained and translated the same. A receipt was obtained from him while being handed over to jail authorities at Udhampur for being kept in preventive custody there. The counsel conceds that no translation or transcription in Urdu or Kashmiri accompanied the grounds and order when same was served on the detenue. 4. Perusal of record reveals that the detenue was taken in custody in FIR 167/99 u/s 7/25 IAA Registered at P/S Maharaj Gunj on 20-07-1999, when some arms and ammunition is shown to have been recovered from his possession. He was granted bail on 02-08-1999 (Annexure PI). The detenue was released on bail from Judicial custody as under trial, while on bail the detenue was again arrested on 07-12-1999 and next day taken to Udhampur Jail for lodgment as detenue under the impugned detention order of Novermber 30, 1999 (Annexure P3). 5. A combined reading of paras 4, 8 and 9, shows that un-controverted allegation of the factum of detenue being on bail during a period of over four months and while on bail he was not reportedly involved in any subversive activity is sustainable. These facts and circumstances were not brought to the notice of the detaining authority as is manifest from the silence maintained by the respondent No. 2 in counter and as also because of the last para of the grounds reproduced below, which run counter to what is stated heretofore. This relevant extract reads thus:- œ.... These facts and circumstances were not brought to the notice of the detaining authority as is manifest from the silence maintained by the respondent No. 2 in counter and as also because of the last para of the grounds reproduced below, which run counter to what is stated heretofore. This relevant extract reads thus:- œ.... Your activities are highly prejudicial to the maintenance of security of the State and although you are at present in police custody there is every apprehension of your being bailed out and join militant activities again which possess a great threat to the security of the State. Hence your detention under J&K PSA has become imperative for which order under the J&K Public Safety Act has been issued.� 6. It would be seen that the detaining authority was fed with information/ report that the petitioner was in police custody when the order of detention was passed on 30-11-1999 and that his being out on bail posed potential threat to the security of the State the facts which run counter to ground reality of petitioner being on bail at the relevant time. No facts and circumstances are brought to the notice of detaining authority of petitioner having indulged in any activity threatening the security of the State. In like circumstances in Anant Sat Ram Vs. State of Maharashtra and others (with another case) AIR 1987 SC: 137, it is pointed out: - œ..... There is absolutely no mention in order about the fact the petitioner was an under trial prisoner, that he was arrested in connection with the three cases that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention. ... We hold that there was clear non application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith.....� Clearly a case of non application of mind on the part of the detaining authority while passing the detention order is writ large on record. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith.....� Clearly a case of non application of mind on the part of the detaining authority while passing the detention order is writ large on record. The order cannot be said to have been passed after deriving subjective satisfaction from relevant material/documents as required under law. The detention is vitiated on this ground. 7. The contention that the detenue is an illiterate and was not supplied translation in Urdu or Kashmiri languages (which he understood) of grounds served in English on him and thereby sustaining the charge of failing to understand its contents so as to adversely affect his real chances of making an effective and meaningful representation, is based on record. 8. Record shows that the grounds of detention and order of detention were served on the detenue by Divisional Officer of Police Division Urdu Bazar, Srinagar who took detenue in custody on 07-12-1999. Though it speaks of that the contents of the warrant were read over and explained to the detenue, but it no where shows that the grounds were also read over and explained to detenue either in Urdu or Kashmiri language which language detenue is stated to be understanding. The whole record speaks of execution of detention order and its being explained in language intelligible to the detenue. In fact, from record, it is seen that the receipt on record is only of transfer of detenue to the Udhampur Jail and confinement of his corpus in the Udhampur Jail for which receipt is given. It only speaks of handing over and taking over of the person of detenue interse Police Division Urdu Bazar, Srinagar and the Assistant Superintendent, District Jail Udhampur. There is no proof whatsoever on record to show that the grounds were served on detenue much less served in language understood by him and accompanied by a translation in the language which the detenue understood. It is also seen from record that the service of grounds on detenue claimed to be through SSP Srinagar/SHO Police Station Mahrajgunj and Divisional Officer, Police Station Urdu Bazar, is not supported by any material or documents on record. It is also seen from record that the service of grounds on detenue claimed to be through SSP Srinagar/SHO Police Station Mahrajgunj and Divisional Officer, Police Station Urdu Bazar, is not supported by any material or documents on record. None of these officials or even for that matter any other officer from Police or jail authorities at Udhampur, has filed an affidavit or placed on record anything regarding service of the grounds as above. In such circumstances, it hardly suffices to say in counter before court that the grounds were served to detenue in the language which he understood. 9. In Smt. Raziya Umar Bakshi Vs. Union of India and others case, AIR 1980 SC: 1751 (Sup) it has been held:- œ...... Where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenue it must see to it that the grounds are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language which he understands. A bare denial at the stage when Habeas Corpus petition is filed in the court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation.� In AIR 1969 SC: 43, it has been observed that mere oral explanation of an order without supplying him a translation in a script or language which the detenue understood amounted to denial of right of being communicated the grounds. In Hadibandhu Das Vs. District Magistrate Cuttak and Anr (1969 SC: 46), it has been held:- œ... The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, besides referring to a large number of court proceedings concerning him and other persons who were alleged to be his associates. The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, besides referring to a large number of court proceedings concerning him and other persons who were alleged to be his associates. Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would in our judgment, amount to denial of the right of being afforded the opportunity of making a representation against the order...� In result, for aforesaid reasons the detention order is held legally bad and therefore quashed. Respondents competent authority having physical custody of the corpus of the detenue Shakeel Ahmad Mir S/O Abdul Salam Mir R/O Woosi Sahib Aali Kadal, Srinagar shall set him at liberty and release him forthwith from preventive detention, provided detenue is not required in any substantive offence or case. Communicate the order to concerned and supply copy to detenue free to cost. The detention record has been handed over to Mr. M. Amin, GA, in open court.