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2002 DIGILAW 200 (JK)

Mohd. Jamal Shah v. State

2002-06-11

SYED BASHIR-UD-DIN

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1. Subject Mohammad jamal Shah has been detained by District Magistrate, Srinagar under Order No.DMS/PSA/179/ 98 dated 13-1-1999, when detenue was already in custody in FIR No.246/98 under section 7/25 I.A.Act registered at Police Station Soura, Srinagar. This order of the detention was executed and said Mohammad Jamal Shah was taken in preventive detention from punitive detention on 12-12-2000. The detention order as also consequent detention is challenged on number of grounds. However, the Ld. counsel for petitioner confines his submissions to the following grounds: - First, that the order of detention has been executed after about 23 months and no explanation or reasons whatsoever is given for such inordinate delayed execution which renders the detention itself illusory, not to serve the purpose for which order has been passed. Second, that the grounds as also material referred in the grounds has not been supplied to the detenu, an illiterate who he is not even informed of his right to make representation. Thereby, while the order is not communicated he is prejudiced to make representation against the detention to the Government. Counter has been filed. The learned counsel for respondents Mr. Ghulam Mustaffa, GA. has also produced detention file and is candid enough to concede that no reason whatsoever is on record to furnish an explanation for inordinate delay in execution of the order after lapse of 23 months. The counsel further goes to submit that the grounds as also the order of detention has been supplied to the detenue who has been explained same in the language which he understands. Therefore, the question of prejudice does not arise. He has been communicated the order and the detention and same is in order on this count. 2. While taking a closer look of the matter and on consideration of the submissions of the counsel for the parties, it emerges from record and submissions, that admittedly the detainee Mohammad Jamal Shah was in punitive detention in FIR 246/96 under section 7/25 I.A. Act, registered at Police Station Soura, from 25-10-98. He continued so even when the detention order in question was passed on 13-1-1999. this detention order was executed and detenue taken in preventive detention only 12-12-2000. No explanation or reasons are given for not implementing the order during the intervening about 23 months. He continued so even when the detention order in question was passed on 13-1-1999. this detention order was executed and detenue taken in preventive detention only 12-12-2000. No explanation or reasons are given for not implementing the order during the intervening about 23 months. Contextually, perusal of grounds would reveal that first and second ground is relatable to detenues anticidents and militancy background, while as third and fourth paragraphs are confined to FIR 246/98, of Police Station Soura (Ibid) and recovery of Arms and Ammunition and the last para says that the detenues activities are highly prejudicial to the security of the State which warrants detenues detention under the J&K Public Safety Act. Obviously, the live and proximate link between the grounds and purpose of detention is snapped by passage of intervening long time period. The order cannot be said to be subsisting and live after such a long period when even the total period for detention of such a detenue under Jammu and Kashmir Public Safety Act is not more than two years. The detention order on this count is vitiated. 3. In K P.M.Basheer Vs. State of Karnatka and Anr. (AIR 1992 SC 1353) it is observed: - "¦Under these circumstances, we are of the view that the order of detention cannot be sustained since the live and proximate link between the grounds and purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/ detenue and detaining him.." 4. The second contention that the detenue, an illiterate person was not given the grounds and the documents referred therein, is also born out by record. Mere allegation of the illegal detention shifts the onus to the State Government to show the legality of the detention. 5. In Mohiuddin Vs. District Magistrate, Beed and ors, (AIR 1987 SC: 1979), His Lordship A. P. Sen, J, speaking for the court observed as under: - "...It is enough for the detenue to say that he is under wrongful detention and the burden lies on the detaining authority to satisfy the court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to satisfy the court that the detention of the petitioner/detenue was legal and in conformity not only with the mandatory provisions of the Act, but also strictly-in accord with the constitutional safeguards embodied in Art. 22(5)..." 6. In view of this preposition of law, it is incumbent on State Government to show that the order is legal and that the grounds and order have been communicated to the detenue within the meaning of Article 22 of the Constitution of India. Detention record shows that only the order of detention has been explained in Urdu/Kahmiri to the detenu, but the record no-where shows that the grounds or other material has been at all supplied to the detenu. No receipt as claimed in the counter has been obtained and in any case no such receipt is born out by the record. Obviously, in absence of supply of the grounds, the detenue cannot be said to have been communicated the order so as to enable him to make a representation to Government against the detention order. Detenue is even prejudiced on this count. 7. In result, for the aforesaid reasons, the detention of Mohammad Jamal Shah (Aged 21 years) S/o Ghulam Mohammad Shah R/o Banger Trehgam Kupwara, is vitiated and therefore, the detention order No: DMS/PSA/179/98 dated 13-1-1999 detaining the above detenue is quashed. Detenu shall be released and set at liberty forthwith, provided not required in any substantive offence, case or matter. Registry to take the follow up action. 8. Copy of the order be given to detenue free of cost. Record is given to Mr. G. Mustaffa, GA, in open court Disposed of.