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2002 DIGILAW 202 (JK)

Parveez Ahmad Labroo v. State

2002-06-11

SYED BASHIR-UD-DIN

body2002
1. Subject Parveez Ahmad Labroo has been arrested in FIR No. 31/2001 U/S 7/27 I. A. Act of P/S Nowhatta Srinagar. While in custody in above substantive offence the District Magistrate Srinagar (respondent No. 2) passed an order of detention bearing No. DMS/ PSA/8 dated: 10-05-2001 detaining him U/s 8 of J&K Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State. This detention order as also the consequent detention is under challenge in this petition. Number of grounds are taken thereto. However, counsel for the petitioner confines his arguments and submissions to following grounds: i) First counsel submits that the dclenue has not been supplied the grounds alongwith the material referred in the grounds, in as much as, the detenue is an illiterate person and was not made to understand the detention order and grounds in English language. No translation or transcription of the order and grounds was supplied to him in Urdu/Kashmiri language. Though detenue shown to be involved in number of cases referred in the grounds but he has not been provided even copy of FIR to enable him to make an effective and meaningful representation against the detention to the Govt. Detenue has not been even informed of his right to make representation, and ii) Second counsel submits that there has been delay of 57 days in implementing the order of detention. No explanation or reasons arc given for this inordinate delay taken to execute the detention order from 14-05-2001 to 11-07-2001, which vitiates the order of detention. 2. Learned GA while countering the arguments submits that the material was supplied to detenue and he was communicated the grounds and order in the language which he fully understood. Copies of FIR have not been supplied to detenue. He was (sic) prejudiced to make effective representation against the detention. However, the counsel is candid enough to concede that there is no explanation or reasons in record to explain the delayed execution to answer the charge of inordinate delay in execution in the facts and circumstances of this case. 3. Paras 8 & 9 of the petition read as under:- "That the detenue is illiterate and cannot understand English language. The detention grounds have been supplied to the detenue which were not understandable and intelligible to the detenue. 3. Paras 8 & 9 of the petition read as under:- "That the detenue is illiterate and cannot understand English language. The detention grounds have been supplied to the detenue which were not understandable and intelligible to the detenue. The detention grounds written in English language and not translated with Urdu or Kashmir! translation thereof has prejudicially effected the detenus right for making the effective representation against his detention order: 9. That the detenue has neither been served with the order of detention nor the material referred to in the grounds of detention. Non supply of the material referred to in the grounds of detention alongwith the copy of FIR, detention grounds to the detenue has prevented him from making an effective representation against his detention. Consequently the detention of the detenue has been rendered void and illegal." In counter paras 8 & 9 are replied as under: "8. That it is denied that the detenue was neither served the order of detention nor the material referred to in the grounds of detention. The material which formed the basis for passing the detention order was supplied to the detenue. FIR and other details referred in the grounds of detention has passing reference and are subsidiary nature. 9. That the grounds are clear and definite and rest of the grounds is denied." 4. The detention order in question begins with the words as:- "Whereas I. Bipul Pathak, IAS District Magistrate Srinagar am satisfied on the basis of records received from SSP Srinagar." 5. It is obvious that petitioners plea that no material has been supplied to him with grounds is not refuted by the respondents, in as much as. respondents in the counter have stated on oath that it is only the grounds of detention which form the basis of detention and the FIR and other material have only relevance for passing reference and are just subsidiary in nature. The detention order read with report/dossier to SSP Srinagar available on record, speaks that the detaining authoritys subjective satisfaction is based on the report/feed-back given to him by the SSP Srinagar. The dossier gives in detail besides the introductory and back-ground facts, the details and nature of militant activities and his actual participation in subversive activities meticulously. As many as 8 FIRs are stated registered against detenue and some arms and ammunition are stated to have been recovered from him. The dossier gives in detail besides the introductory and back-ground facts, the details and nature of militant activities and his actual participation in subversive activities meticulously. As many as 8 FIRs are stated registered against detenue and some arms and ammunition are stated to have been recovered from him. Obviously the minimum one can expect is that the necessary details of the cases are to be given which may include the FIRs, statement recorded U/s 161 Cr. RC. and recoveries. The reference to the FIRs cannot be said to be passing reference and just as subsidiary detail. The activities covered by the FIRs form basis of the whole detention order. The detention order when read as whole, FIRs are main component of grounds. If the FIRs are excluded from the grounds then there is hardly any material to sustain the detention. 6. Obviously the basic facts and the founding information constituting the very basis of the detention order is not communicated to the detenue and therefore he cannot be said to have been communicated the order, hence the inference of prejudice in making effective and meaningful representation is manifest. Viewed thus article 22 (5) of the Constitution cannot be said to have been complied with. Even Section 13 of the J&K P.S. Act, 1978 cannot be said to have been followed in letter and spirit. In Naseer Ahmad Sheikh Vs. Addl. Chief Secy. Home and Anr. (1999 SLJ 241, a Division Bench of this court to which I was a party observed:- "...The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. Nowhere is it pleaded, much less shown, that the copy/ copies of the reports of the police on which the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an effective representation against the order." In Sophia Ghulam Mohd Bhan Vs. State ofMaharashtra and others, (AIR 1999 SC 3051), the Apex Court in the context of "communication of grounds held:- "...... State ofMaharashtra and others, (AIR 1999 SC 3051), the Apex Court in the context of "communication of grounds held:- "...... The right to be communicated the grounds of detention flow from Article 22 (5) while the right to be supplied all the material on which the grounds are based flow from the right given to the detenue to make a representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language..." 7. Detention file shows that while the subject was handed over at Central Jail Jammu, Kotbalwal the detention order as also the grounds were handed over to the jail authorities. The AS1 Gh. Rasool of P/S Nowhalta Srinagar handed the detenue to the jail authorities of Kotbalwal, under the order of detaining authority he read over and explained the order to detenue in language which he fully understood and obtained signatures of the detainee. The jail authorities have obtained a receipt from the delcnue and signed by the detenue as countersigned by Dy. Superintendent Central Jail Kotbalwal regarding service ofgrounds by reading over and explaining same to detenue in Urdu/Kashmiri language. The receipt also shows that the detenue has been informed of his right to make a representation to the Govt. against the detention order. Therefore, the contention that detenue is prejudiced on this count is without merit. In Rustum Wani Vs. State of J&K in LPA (HC) No. 57/2001 decided on 20-08-2001, a Division Bench of this court observed:- "Now the question arises that whether non-supply of copy of grounds of detention in the language which is understood by him would make any difference because the detenue is an illiterate person. In our view, since admittedly the detenue is an illiterate person, instead supplying copy of the grounds of detention if it is explained properly and fully in the language understood by him. would be the sufficient compliance of the mandate of Article 22 (5) of the Constitution." The contention on this ground is as such not accepted. 8. Admittedly the impugned detention order has been passed on 14-05-2001 and implemented on 11-07-2001 in as much as. would be the sufficient compliance of the mandate of Article 22 (5) of the Constitution." The contention on this ground is as such not accepted. 8. Admittedly the impugned detention order has been passed on 14-05-2001 and implemented on 11-07-2001 in as much as. the subject has been placed under preventive detention in execution of the order on the later date. There is a delay of 56 days. No explanation what soever nor any reason, are found on record to explain the delayed execution or supply justification for inordinate delay caused in implementing the detention order. Mr. R. Fida. GA concedes his position. In K.P.M. Baseer Vs. State of Karnataka and Anor. (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 order of detention is snapped on account of the undue and unreasonable delay in securing the appellant/delenue and detaining him..." 9. In the facts and circumstances of this case the live and proximate link between grounds and purpose of detention appears snapped. As many as eight cases have been registered against detenue and detenue is booked in all these cases. "Compelling reasons" for detention are not also shown and focused on. In result, for the aforesaid view taken the detention is vitiated and not in order. Consequently impugned detention order is quashed. Respondents/detaining authority/officer having physical corpus of the detenue Parveez Ahmad Labroo (aged 20 years) S/o Abdul Rehman Labroo R/o Malchimar Aali KadaJ, Srinagar is directed to release him from custody and set him at liberty forthwith, provided he is not required in any other case, substantivc offence or matter. Copy of this order be given to petitioner free of cost. Communicate order to the concerned. Record has been returned to Mr. R. Fida. GA in open court.