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2001 DIGILAW 280 (JK)

Mukhtiar Ahmad v. State

2001-11-15

R.C.GANDHI

body2001
1. Petitioner has challenged Detention Order No. PSA-2000/7 dated: 23-11-2000 passed by the District Magistrate, Udhampur in exercise of power U/s 8 of the Public Safety Act, 1978 directing the preventive detention of the detenue Mukhtiar Ahmad for a period of one year. 2. The petitioner has challenged the detention order on the ground the copy of the dossiers, FIR and other relevant material have not been supplied to him. His representation filed in terms of section 13 of Public Safety Act has not been considered. Criminal cases registered against him are false and fictitious. He has been involved in those cases because of some conspiracy hatched against him. 3. The grounds of detention have neither been supplied nor read out to the detenue in the language which he understands. 4. Respondents have controverted the averments/grounds of the petition by filing separate counter-affidavits by respondents No. 2 and 3. Respondent-2 has stated in his counter-affidavit that the detenue was taken into custody from Sub Jail Reasi on 05-12-2000 and lodged in District Jail, Udhampur. Contents of the warrant have been read out and explained to him in Urdu language which he fully understood. Respondent No. 3 in his counter-affidavit has stated that the grounds of detention were served upon the detenue on 05-12-2000 and read out to him in Urdu/Hindi language which he fully understood and in token whereof the detenue has executed the receipt affixing his signatures thereon, which has been annexed with the reply. 5. Heard the learned counsel for the parties and considered the record made available by the learned Government Advocate. 6. The plea of the learned counsel for the petitioner that copy of FIR, Dossiers and seizures memo have not been supplied to him is without any basis. Perusal of record reveals that these factual documents have been referred in the grounds of detention which are not denied by the detenue. 7. Documents required to be supplied in law are those on the basis of which reliance has been placed for arriving at a satisfaction by the Detaining Authority for directing preventive detention. The existence of these facts have been brought to the notice of the Detaining Authorities for his awareness, therefore, are not required to be supplied to the detenue. 8. Documents required to be supplied in law are those on the basis of which reliance has been placed for arriving at a satisfaction by the Detaining Authority for directing preventive detention. The existence of these facts have been brought to the notice of the Detaining Authorities for his awareness, therefore, are not required to be supplied to the detenue. 8. His another submission is that his representation has not been considered which he has filed in terms of section 13 of the Act against the detention order. Perusal of the report of the Advisory Board constituted U/s 14 of the Act reveals that detenues representation has been considered and he has also been heard. This ground has no substance and is rejected. 9. However, from the perusal of the record it reveals that the respondents have violated the mandatory procedure prescribed in terms of section 15 of the Act. Section 15 reads as:- 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 report by such officer under sub-section (4) of section 8.� 10. It is incumbent upon the Government to place before the Advisory Board the representation made by the affected person against the order of detention along with report of the Officer in terms of sub-section (4) of section 8 of the Act, within a period of four weeks from the date detenue has been taken in preventive custody. The detention order was passed on November 23, 2000 and executed on 05-12-2000; the mod of four weeks is required to be reckoned for placing the case of the detenue before the Advisory Board from the date of execution of order i.e. 05-12-2000. It should have been placed before the Advisory Board before 5th January, 2001. The detention order was passed on November 23, 2000 and executed on 05-12-2000; the mod of four weeks is required to be reckoned for placing the case of the detenue before the Advisory Board from the date of execution of order i.e. 05-12-2000. It should have been placed before the Advisory Board before 5th January, 2001. Perusal of the report of the Advisory Board that it was made available to the Advisory Board on 23-01-2001 which is evident from the findings recorded by the Board which are extracted below: - ...In the case on hand the detenue has been served with a detention order on 05-12-2000 and the reference was received by this Board on 23-012001, which clearly indicates that the Govt. did not make the reference within the stipulated period of four weeks as laid down under the Act. On perusal of the record it appears that the reference has been dispatched on 27-12-200, but the same is received through a special messenger on 23-01-2001. On phone the Superintendent, District Jail, Udhampur, was informed for the hearing of the detenue on 25-01-2001, for as per the record the detenue was detained in district jail, Udhampur. To our surprise it was learnt that the detenue had been shifted to Central Jail, Jammu on 05-12-2000, hence no hearing could be held at Udhampur Jail, January 26, 27 and 28,2001 being holidays the matter could not be heard in these days at Jammu as well. Hence on Jan. 29, 2001 we went directly to Central Jail, Jammu at 10.45 A.M. to give a personal hearing to the detenue but again to our surprise it was learnt that the detenue had been sent to Udhampur to attend some case before a Judicial Magistrate. In this regard a written report was made by the Dy. Superintendent, Central Jail, Jammu, which is on the file. We tried to prevail upon the jail authorities to ensure that the detenue is called back by a wireless message or through a phone call for a hearing but they showed their cold shoulder. We utilized the services of District and Sessions Judge, Udhampur, Mr. Superintendent, Central Jail, Jammu, which is on the file. We tried to prevail upon the jail authorities to ensure that the detenue is called back by a wireless message or through a phone call for a hearing but they showed their cold shoulder. We utilized the services of District and Sessions Judge, Udhampur, Mr. Bihari Lal Bhat, on phone and it was he who managed to send the detenue back to Central Jail, Jammu, wherefrom he was shifted to our office at 4.15 P.M. Had we not made Herculean exercise in this regard as mentioned above the detenue could be released for the Jan. 29, 2001 was the last date when his eight weeks detention was completed. As such the matter is required to be brought to the notice of the Pr. Secretary to Govt. Home Department, with an observation that in future such examples may not be repeated when for paucity of time some chronic militants may get released due to laxity of the Govt. in not placing such matters before the Board within four weeks from the date of detention of a person under the order." 11. From the above, it is also clear that the Board has made an effort to examine the record and provide hearing to the detenue whereas conducts of the Government remain callus as no steps were taken to make the detenue available before the Advisory Board. This conduct of the concerned authority is deplorable. 12. From the perusal of the recorded and considering the provisions of law contained in section 15 of the Act, it is made out that the respondents have breached the mandatory provision containing procedure for placing the case of detenue before the Advisory Board. Mandate of law is required to be strictly followed and not to be breached in preventive detention matters. Breach of the mandate of law renders the detention order unsustainable and is accordingly quashed. Petition is allowed. Respondents are directed to release the detenue forthwith from this preventive detention if the detenue is not required in any other case.