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2002 DIGILAW 243 (JK)

Nazir Ahmad Baba v. State Of J. &K.

2002-07-30

R.C.GANDHI

body2002
1. Petitioner seeks to quash the detention order No. 87 of 2001 dated 23.7.2001, passed by District Magistrate Baramulla, directing preventive detention of the detenue Nazir Ahmad Baba S/o Mohmmad Akbar Baba R/o Ahama Sharief Bandipora Kashmir, in exercise of powers under Section 8 of J&K Public Safety Act 1978 (hereinafter called the Act.) Government/Respondents in exercise of powers u/s 17 of the Act, has confirmed detention of the detenu for the period of 24 months. 2. The detention order has been challenged on various grounds including that the detention order has been executed after a period of 67 days, which has not been explained. 3. Respondents have filed counter affidavit stating therein that the detention order was executed on 01.10.2001. Grounds of detention have been explained to the detenue in the language he understood. The detenue has also been informed to make a representation to the Govt. against the detention order. Detention order was approved by the Govt. on 02.08.2001. The case of the detenue was referred to the Advisory Board on 12.10.2001 and the Advisory Board has opined continuous detention of the detenue vide its report dated 24.11.2001. The detention of the detenue has been confirmed for a period of 24 months vide Govt. order No. Home/PB-V/2126of2001 Dated 25.11.2001. 4. Heard learned counsel for the parties and perused the record. 5 Learned counsel for the petitioner reiterating the grounds taken in the memorandum of the petition, has submitted that the detention order was executed on 01.10.2001, after a period of 67 days, which has not been explained by the respondents while the detenue was taken into custody by the respondents in FIR No. 110/2001 under section 7/25 Indian Arms Act. This fact finds support from the grounds of detention, wherein a mention has also been made by the detaining authority that at the time of issuance of detention order, the detenue was in custody of the respondents. 6. Learned counsel for the respondents, in rebuttal has submitted, that the procedural requirements provided under the provisions of the Act have been compiled with by the respondents and the detention order does not suffer on any account including the non-explanation of the delay caused in execution of the detention order, on the part of the respondents. 6. Learned counsel for the respondents, in rebuttal has submitted, that the procedural requirements provided under the provisions of the Act have been compiled with by the respondents and the detention order does not suffer on any account including the non-explanation of the delay caused in execution of the detention order, on the part of the respondents. The point in controversy need not to be dilated upon, as it has been set at rest by the Division Bench in LPA No. 17/99 titled Ghulam Rasool Shah Vs. State and others decided on 10.8.99. The plea of the appellant before the Division Bench was that the respondents have not explained the delay of 48 days in execution of the detention order while the detenue was already in their custody. The point in controversy herein is similar and covered by the Division Bench judgment. The Division Bench while dealing with this plea of the appellant has observed as under: "...In the present case the detenue was available with the executing agency, being lodged in judicial custody in connection with a criminal case. No explanation has been tendered for the delayed execution of the order of detention. Therefore, there is a reasonable ground to think that the delay in execution of the detention warrant was occasioned by the respondents deliberately to gain time and to ensure that the detenue is kept in custody for a longer period of time. This object, as in the case at hand, can be achieved by respondents by a simple way. The detenue is first kept in custody in connection with criminal case for along a period as can be. While the execution of the warrant of detention is kept pending. As and when the executing agency apprehends that the accused-detenue is likely to be bailed out, or considerable long period has elapsed since the date of issue of the detention order, they execute the detention warrants at their whim and will. Thus their object of prolonging the custody/detention of a citizen is achieved. This is simply malafide on the part of the concerned authorities. Situations are conceivable, as rightly observed by brother Khan J. in the judgment- (supra) where detaining authority may have reasons for not executing an order with reasonable despatch. It may be difficult and even impossible in certain cases, e.g. where the person to be detained is absconding or concealing himself. Situations are conceivable, as rightly observed by brother Khan J. in the judgment- (supra) where detaining authority may have reasons for not executing an order with reasonable despatch. It may be difficult and even impossible in certain cases, e.g. where the person to be detained is absconding or concealing himself. In such cases delayed execution may be justified. But where a detenue is available with the respondents, any delay, morose unexplained, in execution of the detention warrant tantamounts to manipulations on the part of the detaining authority as well as the executing agencies. Where there is unexplained, or even unsatisfactory, delay between the date of order of detention and the date of its execution such a delay would throw a serious and considerable doubt on the genuiness of the subjective satisfaction of the detaining authority, leading to a legitimate inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenue with a view to preventing him from acting in a prejudicial manner. That being so, the detention of the detenue in the instant case is rendered illegal..." 7. The delay of 67 days has not been explained by the respondents which was required to be explained either in the counter affidavit or by production of record justifying the delayed execution. It is the duty of the respondents to defend their action when challenged in the court of law. The respondents could have justified the delayed execution by production of relevant record, which has not been done. Therefore, this court has no alternative but to allow the petition, as this point of controversy has already been settled by the Petter Patent Bench. Accordingly, the petition is allowed. Detention-order No. 87 of 2001 dated 23.7.2001 is quashed. Respondents shall release the detenue Nazir Ahmad Baba S/o Mohammad Akbar Baba R/o Ahama Sharief Bandipora Kashmir, from preventive detention if not required in any other case. 8. Petition is disposed of.