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2000 DIGILAW 241 (JK)

Nazir Ahmad Sheikh v. State Of J. &K.

2000-11-07

SYED BASHIR-UD-DIN

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1. In this Habeas Corpus petition detention order DMS/PSA/163 dated 24-01-2000 of District Magistrate Srinagar, whereunder, petitioner Nazir Ahmad Sheikh is detained, is under challenged on various grounds. The petitioners counsel urges main three ground in support of his case. First that he was not given an opportunity to make representation under Article 22 (5) of the Constitution to the Government against the detention order. Second that the detention order is of Jan. 24, 2000. The grounds of detention were provided to him only on 08-02-2000, thereby violating Section 13 of the Public Safety Act. Thirdly, the impugned order suffers from non-application of mind. 2. In answer Mr. R. Bazaz, GA, referred to counter on record, whereby he points out that the petitioner was given opportunity to project his case before Advisory Board under Section 15 of the J&K Public Safety Act against the detention and that the grounds of detention alongwith material was delivered to the detenue on 08-02-2000. He submits that there has been no violation of any statutory provision. Article 22 (5) of the Constitution provides:- When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." Section 15 of the Jammu and Kashmir Public Safety Act 1978 provides:- 15. Reference to Advisory Board. In every case where a detention order has been made under this Act, the Government shall, within four weeks from the date of detention under the order place before the Advisory Board constituted by it under Section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also reported by such officer under sub-section (4) of Section 8.� 3. What transpires from record is the only opportunity provided to the detenue is the one under J&K Public Safety Act of making representation against the detention to Advisory Board constituted under the Public Safety Act. The opportunity provided to the detenue under clause (5) of Article22 is in addition to the one provided under J&K Public Safety Act. What transpires from record is the only opportunity provided to the detenue is the one under J&K Public Safety Act of making representation against the detention to Advisory Board constituted under the Public Safety Act. The opportunity provided to the detenue under clause (5) of Article22 is in addition to the one provided under J&K Public Safety Act. The opportunity required to be provided to the detenue under the Constitution is paramount and the detaining authority is under constitutional mandate, not only to communicate the grounds on which the detention order is based, but also to offer the detenue the earliest opportunity of making representation against the order. The obligation of the Government to consider the detenues representation is separate from and independent of the consideration of the detenues case by Advisory Board. Consideration by Board is an additional safeguard and not a substitute for consideration of the representation by the Government as required by Article 22 (5). (See AIR 1969 SC: 1028; AIR 1972 SC: 739; AIR 1974 SC: 2154; AIR 1975 SC: 64; AIR 1979 SC: 1501 and AIR 1991 SC: 1090). 4. In Jayanarayan Sukul Vs. State of West Bengal, (Air 1970 SC: 675), a Constitutional Bench observed:- "20. Broadly stated, four principles are to be followed in regard to representation of detenue.......Secondly, the consideration of the representation of detenue by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenue by the Advisory Board...." Another Constitutional Bench in K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India, State of Karnataka, (1991 AIR SCW 362 at page 367) observed:- "¦The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government is safeguard by Clause (5) of Article 22 and it is independent of the consideration of the detenues case and his representation by the Advisory Board under clause(4) of Article 22 read with Section 8 (c) of the Act...." 5. In counter, it is neither refuted nor stated that the detenue was ever given opportunity to make representation against the order. This obviously breaches the constitutional provision and impinges on the protection given to the detenue under Article 22. In counter, it is neither refuted nor stated that the detenue was ever given opportunity to make representation against the order. This obviously breaches the constitutional provision and impinges on the protection given to the detenue under Article 22. The detenue as per averments in para 4 of the counter has been supplied grounds of detention only on 7th or 8th of Feb. 2000, when the order or detention is of 24-01-2000. 6. Section 13 provides that if a person is detained pursuant to an order of detention, the detaining authority shall ordinarily communicate grounds to the detenue within five days and in exceptional circumstances and that too for reasons to be recorded in writing not later than ten days from the date of detention. The date has reference to the preventive detention under an order passed under Jammu and Kashmir Public Safety Act. However, the counsel submits that the grounds are to be served within the aforesaid prescribed time period irrespective of whether petitioner (detenue) is held in preventive or punitive detention, the counsel has cited decision of this court dated 05-09-2000 in H.C. No. 30/2000 (Sheikh Abdul Aziz Vs. State of J&K). Though the judgment supports the submissions of counsel Mr. Mir Shafaqat Hussain but in the facts and circumstances of this case such an inference can scarcely be drawn from the language used in Section 13 of the J&K Public Safety Act. 7. So far as the contention of Mr. Mir Shafaqat Hussain, that the impugned order suffers from non-application of mind is concerned, a perusal of grounds of detention shows that in first para detenue is stated to be a member of JKLF Organization with object of seceding the territory of Jammu and Kashmir, from the Union of India, and for the purpose he is motivating the youths to join the out fit and is also imparting weaponry training to them. The second para names16 persons as associates of the petitioner with whom the petitioner was lodged in Central jail and all these persons having hatched up criminal conspiracy to set up the militant activities by sorting to the armed action(s) against the Security forces through various militants outfits. The second para names16 persons as associates of the petitioner with whom the petitioner was lodged in Central jail and all these persons having hatched up criminal conspiracy to set up the militant activities by sorting to the armed action(s) against the Security forces through various militants outfits. The third para speaks of convening of meetings by these persons and sending messages to the outfits for doing various subversive activities and four persons are named as having been used conduits to send out the said messages. In the last para, it is stated that the detenue is locally trained militant of SLF involved in murder, kidnapping and bomb blast cases, in which case he (detenue) is held in custody on substantive charges with expression of apprehension that the detenue may be released on bail. 8. Now these grounds when considered in totality, do not give (apart from running omnibus terms and speaking in too generalized terms) specifically and in detail the date, time, place, nature of activities etc. Even description of "militants organisation to whom the messages are alleged to have been sent are not described. No specific acts attributed to the detenue in respect of his allegedly having hatched a criminal conspiracy and those too within jail premises are given. How the concerned persons came in contact with the detenue and his associates and how and in what specific manner the messages were sent out is not also given. The nature and content of messages alleged to have been sent out to the organizations is not also mentioned. No record is made available, as to how and in what circumstances the detenue and his Associates named therein could and did hatch a conspiracy in the Central Jail Srinagar, where they are lodged under the very nose of the security set up of the jail and how he and his associates were able to meet as alleged and send out messages in routine. The detenue is stated to be a member of JKLF, while as in the last para he is stated to be a member of SLF. All these features do indicate at the grounds of detention are vague and run in omnibus terms. The order of detention suffers from non application of mind, notwithstanding, subjective satisfaction is a matter for detaining authority. All these features do indicate at the grounds of detention are vague and run in omnibus terms. The order of detention suffers from non application of mind, notwithstanding, subjective satisfaction is a matter for detaining authority. For the aforesaid reasons detention is found and held to be vitiated so as to result in quashment of the detention order. The detention order is accordingly quashed. The respondents/authority having corpus of the detenue (Nazir Ahmad Sheikh S/o Abdul Rashid Sheikh R/o Batamaloo Srinagar) is directed to set him at liberty forthwith, provided not required in any substantive offence or case. Communicate the order to concerned and supply copy free of cost to the detenue. Disposed of.