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2001 DIGILAW 39 (JK)

Rustum Wani v. State

2001-02-15

R.C.GANDHI

body2001
1. The detenue Rustum Wani in HCP No. 232/2000 and Ghulam Mohammad Bhat detenue in HCP No. 233/2000 seek to quash the detention order No. 43-DMP/2000 dated: 03-08-2000 and No. 41-DMP of 2000 dated: 03-08-2000 respectively, passed by the District Magistrate. Pulwama, respondent No. 2, in exercise of his powers under Section 8 of the J&K Public Safety Act. 1978 thereinafter called the "Act") directing the preventive detention of the detenues. The period of detention has been fixed by the Govt. invoking its power under Section 18 of the Act, for 24 months. 2. These two petitioners being common on facts and law are disposed of by this common order. Respondents have directed the preventive detention of the detenues on the grounds that they are the members of Hizbul Mujahideen organisation which outfit is working for destabilizing the Government duly established by law and aided by ISI of Pakistan. Detenues have received the training in handling of sophisticated arms especially in grenade lobbing. They have been assigned the task of arranging money to carry out the subversive activities by the terrorists. To arrange money and to comply the orders of militant leaders, they kept close nexus with the timber smugglers of Pirpanchal Division and in short span of time they became notorious timber smugglers. They are involved in timber smuggling and the money so earned by selling illicit timber was spent to carry out the subversive activities in the areas falling within the jurisdiction of P/S Rajpur/Shopian. They are working for the outfit as upper ground workers, arranging food and shelter and harbourer of militants. They are also assigned the task to guide foreign mercenaries and motivating teen aged boys to participate in militancy. They motivate youngsters and sent them abroad to receive weaponry training. They have turned to be notorious timber smugglers, dacoit, rapist, of the Kellar area. They have no respect for the law of the land which they violate blatantly with impunity. Detenues were arrested on 23rd July, 2000 by Police Station Rajpur. One A.K. Mag. and 15 live round of A.K. Riffle were recovered from the possession of Rustum Wani and he was booked in FIR No. 95/2000 under section 7/25 I. A. Act in P/S Rajpur. Detenues were arrested on 23rd July, 2000 by Police Station Rajpur. One A.K. Mag. and 15 live round of A.K. Riffle were recovered from the possession of Rustum Wani and he was booked in FIR No. 95/2000 under section 7/25 I. A. Act in P/S Rajpur. One hand grenade was recovered from the possession of Ghulam Mohammad Bhat and FIR No. 94/2K under section 7/25 of I. A. Act have been registered against him in Police Station Rajpur. Their activities have been found prejudicial to the security of the State and there is every likelihood of their being released on bail and indulging in such subversive activities. 3. The detention order has been challenged by the detenues on the grounds that the detenues were already in the custody of the respondents and their detention has been directed without disclosing the relevant material and compelling reasons which itself is non-application of mind. The detenues have not applied for bail and apprehension of the Detaining Authority that the detenues will be released on bail is mis-placed. The detenues have not been supplied the material such as FIR, on the basis of which the detention order has been passed. The detenues have not been supplied the grounds of detention which has deprived them to make representation in terms of section 13 of the Act. The cases of Ihc detenues were neither sent to the Advisory Board nor the Board has made a report to the Government. The detenues are illiterate persons and the grounds of detention were explained to them in english language which they have not understood and it was not translated in Kashmiri language which language detenues can understand. Respondents have filed the counter affidavits, controverting the grounds taken by the detenues, slating therein, that the detaining authority was aware of the cuslodv of the detenues and their activities have been found prejudicial to the security of the State. There is likelihood of their release on bail, therefore, the detention order do not suffer for want of cogent material, compelling reasons or non-application of mind. Detenucs were taken in preventive custody on 07-08-2000. The detention orders have been approved by the Government in terms of section 8 (4) of the Act vide Government Order dated: 10-08-2000. The detenues were produced before the Advisory Board, who has sent its report to the Government on 12-09-2000. Detenucs were taken in preventive custody on 07-08-2000. The detention orders have been approved by the Government in terms of section 8 (4) of the Act vide Government Order dated: 10-08-2000. The detenues were produced before the Advisory Board, who has sent its report to the Government on 12-09-2000. The Government invoking section 17 has confirmed the detention order vide Government Order dated: 02-07-2000. The grounds of detention have been explained to the detenue in Kashmiri language which they fully understood. They have affixed their thumb impressions on the receipt executed in token of receipt of the grounds of detention. They have also been informed to make representation to the Government. The detaining authority is subjectively satisfied that the activities of the detenues arc prejudicial to the security of the State. 4. I have heard the learned counsel for the parties, perused the pleadings and the record made available by the Government Advocate. 5. Learned counsel for the petitioner relying upon the judgment reported in 2000 SLJ 273,467 and 543 has submitted that the relevant documents have not been supplied to the detenues which have prejudiced their rights. He has also placed reliance on judgments 1989 (4) SCC 751, 1990 (1) SCC 568 to make out that the detenues being already in the custody of the respondents, the detention orders are not justified merely on apprehension that there is likelihood of their release. The Supreme Court while dealing with similar situation in the case Ahmad Nassar Vs. State ofT.N. reported iu 1999 (8) SCC 473 has held: "....Merely because no bail application was then pending is no premise to hold that there was no likelihood of his. being released on bail. The words likely to be released" cannot chances of being bailed out, in case there be pending bail application or in case if it is moved in future is decided. The word likely shows it can be either way." Learned counsel for the petitioner also submitted that the material such as FIR on the basis of which the detention order came to be passed has not been supplied to the detenue. The statutory provision has not complied with, therefore, the detention order is not sustanable in law. Learned counsel has not made out that in what manner the non-supply of the documents has caused prejudice to the rights of the detenue. The statutory provision has not complied with, therefore, the detention order is not sustanable in law. Learned counsel has not made out that in what manner the non-supply of the documents has caused prejudice to the rights of the detenue. In order to succeed in the plea he has to make out that because of the non-supply of the documents his right in a particular manner, which has been protected by law or the statue, has been prejudiced and violated by the respondents. The Supreme Court while dealing with such a situation in the case Kamarunnissa Vs. Union of lndia reported in AIR 1991 SCC 1640 has held:- "... It is not sufficient to say that the detenues were not supplied the copies of the documents in time on demand but it must be shown that the non-supply has impaired the detenues right to make effective and purposeful representation. Demand of any or every document, however, irrelevant it may be for the concerned detenue, merely on the ground that there is a reference thereto, in the grounds of detention cannot vitiate an otherwise legal detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenue must show that the failure to supply the documents before the meeting of the AdvisoryBoard had impaired or prejudiced his right, however, slight or insignificant it may be. In the present case, except stating that the documents were not supplied before the mueting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioners point out any such prejudice." The other grounds taken in the petition have been controverted by the respondents in their counter. No other ground has been urged. For the aforesaid reasons the petitioners are not found entitled to the relief prayed for. The petition are accordingly dismissed.