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J&K High Court · body

2000 DIGILAW 183 (JK)

Showket Ahmad Bakshi v. State

2000-09-05

G.D.SHARMA

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1. In pursuance of detention order No: DMS/PSA/155 dated: 17.01.2000 passed by respondent No:2 under section 8 of the J&K Public Safety Act (hereinafter to be referred to as Act) Shri Showket Ahmad bakshi was detained for 24 months. The order was based on the grounds that he is a stunch member of JKLF which is an outlawed organisation having its headquarter in Pakistan occupied area of the State of Jammu & Kashmir. The aim and object of the said organisation is to secede the state of Jammu & Kashmir from Union of India by waging a war. In order to achieve this goal the detenue motivates Kashmiri muslim youths to become the activists of the organisation and receive training in handling the weapons and then execute the terrorist and subversive activities in the valley. 2. The detenue alongwith his associates were lodged in Central Jail Srinagar where he hatched up a criminal conspiracy to step up the militant activities by indulging in armed actions against security forces through militant outfits. The names of the associates (numbering 14) have been mentioned in the grounds of detention. The detenue and his associates were sending messages to various militant outfits to step up militancy related activities, the messangers numbering six have been named. After receiving these messages the members of the concerned outfits step up militancy related activities which result in the commission of violent acts. 3. The detenue is facing trial before the addl. Designated TADA court srinagar. There was likeli-hood of his being released on bail so in order to prevent him from carrying on subversive and anti-national activities the above said order was passed which through the medium of this habeas corpus petition has been challanged on the following grounds: - 1) The detenue was arrested on 08.04.1990 and ever since has been facing trial for the commission of henious offences. He never applied for bail and thus there could be no possibility of his release on bail. He could not carry out any subversive activity while being in custody. The order instead of being preventive in nature is of punitive nature. 2) Written representation dated: 16.03.2000 against the detention had been made through registered post which has not been decided till date. The requirement of law is that it should have been decided forthwith. He could not carry out any subversive activity while being in custody. The order instead of being preventive in nature is of punitive nature. 2) Written representation dated: 16.03.2000 against the detention had been made through registered post which has not been decided till date. The requirement of law is that it should have been decided forthwith. 3) The impugned order was passed before the grounds of detention were prepared which is evident from the grounds of detention itself. An order which is passed without application of mind is bad in the eye of law. 4) The grounds of detention are vague. 4. In the counter filed by respondent No: 2 it is admitted that the detenue is facing trial before the First Addl. Designated TADA court Srinagar. The impugned order was executed on 24.01.2000 and its contents alongwith the contents of ground of detention were read over and explained to him in the language which he understood. The copy of the impugned order as well as copy of the grounds of detention were supplied to him the detenue was informed vide letter No:DMS/MISC/976-86dated:17.01.2000 that he had the right to make a representation against his detention but he failed to do so. The detenue was heard by the Advisory Board in person and after perusal of the record the detention was confirmed on 18.02.2000. The Government in exercise of the powers vested under Section 17(i) of the Act passed order bearing No: Home (PB-V) 598 of 2000 dated:06.03.2000 and confirmed his detention for a period of 24 months. The activities of the detenue as detailed in the grounds of detention are detrimental to the security of the State and the impugned order was passed in order to prevent him from carrying them further as there was likelihood of his getting released on bail. 5. Heard the arguments. 6. The learned counsel appearing for the petitioner has contended at the outset that there was no subjective satisfaction on the part of detaining authority as he was ignorant about the representation dated: 16.03.2000 which the brother of the detenue had made through registered post to the Chief Secretary. In the counter, respondent No:2 has stated that the detenue had failed to make any representation to the Government against the impugned order. The detenue never applied for bail so the apprehension expressed in the grounds of detention is imaginary. In the counter, respondent No:2 has stated that the detenue had failed to make any representation to the Government against the impugned order. The detenue never applied for bail so the apprehension expressed in the grounds of detention is imaginary. It is also contended that the impugned order is anterior in time than the grounds of detention because their last lines run as under: - In view of the compelling circumstances, it is imperative that you should be detained under P.S. A. 1978 for which separate order has been issued.� 7. Concluding his arguments it is urged that section 13 of the Act was infrigned because the impugned order was served on 7th day from the day it was passed and no reason for delay has been assigned. The grounds of detention are vague because the conspiracy does not speak of time and place. No conspiracy can be hatched from the Jail because interview with any outsider or inmate of the jail is regulated in accordance with Jail rules. The militant activities can not be stepped up by sending messangers from the jail. The allegation is unbelieved. 8. In rebuttle Mr. Khan G.A. pleaded that grounds of detention were prepared prior in time than passing impugned order. The grounds of detention are to be read as a whole and not in isolation by referring last lines. Respondent No: 2 could not be in know of the representation made to Chief Secretary by the brother of the detenue. In the writ petition it is alleged that grounds of detention were not served upon the detenue so he could not make a representation to the government whereas, in the arguments it is stressed that representation dated: 16.03.2000 made to the Chief Secretary has not been decided despite an expiry of the period of more than six months. 9. The arguments advanced at the bar have been considered. At the outset the breach of procedural safeguard enshrined in Section 13 of the Act is detected. 9. The arguments advanced at the bar have been considered. At the outset the breach of procedural safeguard enshrined in Section 13 of the Act is detected. The section mandates that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, but not later than ten days from the date of detention communicated to him grounds on which the order has been made and afford him the earliest opportunity of making a representation against the order to the Government. On the date when the order was passed on 17.01.2000, the detenue admittedly was in the custody of the respondents and the order was served on 24.01.2000. There is unexplained delay of six days for executing the impugned order. This basic infirmity is a sufficient ground to vitiate the impugned order. 10. The non-application of mind on the part of detaining authority is also established. There is no record which supports the allegation of the detaining authority that there was apprehension regarding detenue getting bailed out from the Trial Court. He had not applied for the grant of bail and till date he has not been released. This apprehension was imaginary and not real. Representation dated: 16.03.2000 made by the brother of the detenue to the Chief Secretary was sent through registered post on 22.03.2000 (as per the postal receipt produced on the record) which remains undecided till date. Section 13 makes it obligatory on the part of the detaining authority to afford a detenue the earliest opportunity of making a representation which correspondingly casts a duty on the Government to decide the representation as expeditiously as possible. In case of a detention made under the Act the personal liberty of a citizen is curtailed so the procedural safeguards provided in the Act are required to be followed regorously and vigorously. In case of their infraction the order in question becomes void. In the instant case as observed above the safe-guards have been observed in breach rather than in their observance. In case of their infraction the order in question becomes void. In the instant case as observed above the safe-guards have been observed in breach rather than in their observance. Lackadaisical approach adopted by the Government and the detaining authority is manifested from the fact that when on 14.06.2000, the counter was filed in the court by the detaining authority (respondent No: 2), he was ignorant about the representation dated: 16.03.2000 made by the brother of the detenue to the Chief Secretary through registered post on 22.03.2000. In para No.3 of the counter, respondent No: 2 has stated that detenue was asked to make a representation to the Government which he failed to do so. The detenue is not an ordinary gun wielding militant but on the activities are of the nature of causing wider ramifications to the threaten the security of the state. He has been in custory since 1990 facing trial for henious crimes. It was required from the Chief Secretary to keep a close watch on his detention and the detaining authority should have acted in tandem under his instructions and guidance. The ignorance shown by Respondent No: 2 about the representation in question in the counter speaks volumes how the matters concerning the security of the state are dealt with casually from the top slot of the administrative heararchy down to the lowest concerned rung. Such a display of ostrich syndrome is reprehensible and it sends shivers down to the spine of every body who is concerned with the security of the state and up-holding the rule of law. A pragmatic and result oriented approach in dealing with such matters is the need of the hour. 11. In view of the discussion made above, writ petition is accepted and impugned order is set-aside with a direction to the respondents to release the detenue forthwith provided his detention is not required otherwise in accordance with law.