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2000 DIGILAW 91 (JK)

Riyaz Ahmad Beigh v. State Of J. &K.

2000-05-08

SYED BASHIR-UD-DIN

body2000
1. Riyaz Ahmad Beigh has been detained by District Magistrate Srinagar - respondent No. 2 under order No. DMS/PSA/ 69 dated 02-07-1998 for a period of 12 months in order to prevent him from acting in any manner prejudicial to the security of the State, under the provisions of J&K Public Safety Act 1978. This order is challenged on grounds detailed out in the petition. Respondents through respondent No. 2, District Magistrate Srinagar have filed counter. 2. Heard. Counsel for the petitioner assails the detention order on submissions that the order of detention was not served on him. The detenue was not supplied copy of FIR and other material relied on in the grounds of detention. The grounds of detention served on him were not explained to him in Urdu or Kashmiri language which he understands, nor the grounds were accompanied by a script or translation in these languages. The grounds as such were quite unintelligible to the detenue. Though the order of detention is passed on 02-07-98, yet it took the respondents around one year to take the detenue in preventive custody on 26-06-99, when during all this period petitioner was with the respondents in punitive custody after his arrest on 05-05-98 in FIR No. 85/98 u/s 7/27 Indian Arms Act registered at P/S M.R. Gunj Srinagar. The delay in execution of the order fairly shows non-application of mind of the detaining authority and the routine under-gone by the detaining authority only to extend incarceration by hook or crook of the petitioner. 3. Mr. Khan, GA in reply submits that the detenue after his apprehension in the said regular case and after recovery of arms and ammunition, was detained under the impugned order of detention in order to prevent him from indulging in activities prejudicial to the security of the State. The detenue was informed of his right to make a representation. The detention order was read over and explained to detenue in language which he understood after he was taken in preventive custody on 26-06-99. The grounds of detention were also served to the detenue and its contents were read over and explained to him. The detaining authority has applied its mind to the facts and circumstances of the case and the material placed before him and has drawn subjective satisfaction culminating in passing of impugned detention order. 4. The grounds of detention were also served to the detenue and its contents were read over and explained to him. The detaining authority has applied its mind to the facts and circumstances of the case and the material placed before him and has drawn subjective satisfaction culminating in passing of impugned detention order. 4. In counter respondents have unequivocally averred that only the grounds of detention were supplied to detenue and no other material was supplied to him. Perusal of grounds of detention (Annexure-B) shows that the detenue is stated to be a trained militant of banned Hizbul Mujahidin outfit having been motivated by a person named as Aziz and having got weaponry training and handling of arms and ammunition and thereafter having indulged in antinational and subversive activities exemplified by his arrest in Fir 85/98 u/s 7/27 Indian Arms Act registered at P/S M.R. Gunj Srinagar, with recovery of arms and ammunition. Obviously these grounds are based on some information, dossier and report of some concerned agency. Besides the registration of first information report, recovery of arms and ammunition, statements recorded u/s 161 Cr. P.C. and other material, information gathered during the course of investigation of the case are relevant material which the law requires to be supplied to the detenue. All this has not been done. In the fact situation and circumstances, the detenue cannot be said to have been provided opportunity to make an effective representation against his detention, as guaranteed by article 22 of the Constitution, besides by provisions of J&K Public Safety Act. So long the material, on which the facts and conclusions constituting the basis of subjective satisfaction of the detaining authority, is withheld from or denied to the detenue, the detenue cannot be said to be communicated the grounds. (See AIR 1981 SC: 510; AIR 1980 SC 1983; 1999 SLJ 241 and AIR 1999 SC 3051). 5. The contention that the detenue is an illiterate and that he was not served the grounds in the language which he understood and even was not supplied the transcript or translation thereof, is not specifically denied by the respondents. What respondents have pleaded in counter is that the detenue has been served an order and grounds in the language which he understood. Which language detenue understood is not specified. What respondents have pleaded in counter is that the detenue has been served an order and grounds in the language which he understood. Which language detenue understood is not specified. There is no proof to show that any endorsement of detenue of having been made to understand the grounds in the language which he understood, is on record. Respondents have admitted that detenue is putting his thumb impression on endorsement. The affidavit or any other document of the serving officer or the person who actually executed the order and served the grounds is not placed on record, Respondents have not also denied that the petitioner is illiterate. There is no denial of fact that grounds were not accompanied by any translation or transcription in such circumstances, just a mere oral explanation would not suffice and the detention is even vitiated on this ground, (See AIR 1980 S.C.: 1451, AIR 1969 S.C. 43). 6. The contention that the order was executed belatedly so as to throw doubt on the genuineness of subjective satisfaction of the detaining authority, is equally born on record. Admittedly the detenue was arrested and continued in primitive detention by respondents since 05-05-98. The order of detention was passed on 02-07-98. However this order of 02-07-98 was executed after about one year on 26-06-99, There is no explanation whatsoever as to why the order was not executed all along, when detenue continued with respondents although. In Mohammad Javaid Abdul Vs. D.K. Jain, Principal Secretary (Preventive Detention) and others 1994 (3) Crimes SC 522, where detention order u/s 31 of Narcotic Drugs and Psychotrophic Substances Act (NDPS Act) was passed on 23-10-92, but it was not executed till 08-04-1993, the Supreme Court observed: œ.... The subjective satisfaction of the detaining authority, urged the petitioner, was thus unreal and sham and the unexplained delay in execution of the order of detention renders the detention illegal, unconstitutional and void....... The subjective satisfaction of the detaining authority, urged the petitioner, was thus unreal and sham and the unexplained delay in execution of the order of detention renders the detention illegal, unconstitutional and void....... In the circumstances, the conclusion is invitable that the detention order was not executed for quite a long time and for such delay there is absolutely no explanation on account of which it has to be inferred as was held by their lordship in the case of T.A. Abdul Rehman œ1� that when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of detenue, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenue with a view to preventing him from acting in a prejudicial manner....�1(1989) 4 SCC 74. In result, for the aforesaid reasons, the petition is allowed and the detention as also the impugned order of detention is held illegal. Consequently the detention order is quashed. Respondents/detaining authority/officer having physical corpus of the detenue Riyaz Ahmad Beigh S/O Mohd Sidiq R/O Gurgari Mohalla Qalamdanpora Zainakadal Srinagar is directed to release him from custody, and set him at liberty forthwith, provided detenue is not required in any other offence of case. Communicate this order to concerned. Give copy free of cost to detenue.