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2002 DIGILAW 265 (JK)

Farooq Ahmed Chopan v. State

2002-08-16

B.L.BHAT

body2002
Through the medium of this petition for issuance of writ of Habeas Corpus under Article 226 of the Constitution of India read with section 103 of the Constitution of J&K, the petitioner Farooq Ahmed Chopan who came to be detained pursuant to Detention Order No. 4/JC/01 dated 24.2.2001 issued by respondent No. 2, District Magistrate, Doda under section 8 of the J&K Public Safety Act, 1978 has sought indulgence of this court inter-alia for quashing the said detention order. It is inter-alia maintained in the petition that the petitioner- detenu who is a citizen of India and a permanent resident of J&K State was taken into custody on 22.8.2000 by the army personnel, subjected him to severe physical torture and questioning him as to whether he was involved in any anti-national activities. 2. That the petitioner was also taken into police custody and thereafter was lodged in Central Jail, Jammu. That while in Central Jail on 24.2.2001 he was handed over a communication No. JC-01/1334-36 dated 24.2.2001 from District Magistrate, Doda alongwith grounds of detention. That the grounds of detention are not sufficient for arriving at a satisfaction that the petitioner acted or is likely to act in any manner prejudicial to the security of the state. That the order of detention is violative of Articles 21 and 22 of the Constitution of India. That the order of detention has been passed after a long delay of six months. That the petitioner has not been supplied with the copy of order of detention, as such he was not in position to make effective representation. That the petitioner was not supplied the material on which reliance was placed in passing the order of detention by the District Magistrate respondent No. 2. That no period of detention has been intimated to the petitioner. That the grounds of detention are vague. 3. Respondent No. 2 has resisted the petition by filing his counter-affidavit stating therein that the impugned order of detention came to be passed on 24.2.2001 and the same came to be executed on 5.3.2001. 4. That the grounds of detention were supplied to the detenu on 5.3.2001 when the order of detention was executed. 3. Respondent No. 2 has resisted the petition by filing his counter-affidavit stating therein that the impugned order of detention came to be passed on 24.2.2001 and the same came to be executed on 5.3.2001. 4. That the grounds of detention were supplied to the detenu on 5.3.2001 when the order of detention was executed. It is also stated that the detenu being a hardcore militant, his activities were considered highly prejudicial to the security of the State and he was found indulging in anti-national and subversive activities, so order of detention was passed against him and that the detenu was arrested on 20.9.2001 in case FIR No. 122/2001 under section 364, 302 RPC and under section 7 read with section 27 of Arms Act by the police, Banihal. Respondent-3 has also filed counter-affidavit, wherein, it is stated that the detenu Farooq Ahmed is lodged in Central Jail Kot Bhalwal pursuant to the detention order dated 24.2.2001 issued by the District Magistrate, Doda under the provisions of J&K Public Safety Act. That the grounds of detention were served upon the detenu on 5.3.2001. 5. Heard Mr. J.S. Kotwal, Sr. Advocate appearing on behalf of the petitioner-detenu and also Mr. Puneet Kohli, Government Advocate representing the respondents. The petitioner has assailed the order of detention on various grounds but learned counsel appearing on his behalf has laid much stress on the ground that there is unexplained delay of about five months in passing the detention order against the petitioner-detenu from the date of taking him into custody in FIR No. 122/2001 for offences punishable under sections 364,302 RPC and 7/27 of Arms Act and that there is also delay in execution of the Detention order impugned when there is nothing on record to show that the petitioner-detenu had gone in hiding but was very much available being in the police custody. Perusal of the counter-affidavit filed by respondent-2 reveals that the detenue was arrested on 20-09-2001 in case FIR No. 122/2001 and the Detention order came to be issued on 24.3.2001 i.e. to say well after five months. There is nothing in this counter-affidavit or on the record submitted by the learned Govt. Advocate as to what prevented the detaining authority to issue detention order immediately after the arrest of the detenu in said FIR No. 122/01 for offence under section 364/302 RPC and 7/27 of Arms Act of Police-Station, Banihal. There is nothing in this counter-affidavit or on the record submitted by the learned Govt. Advocate as to what prevented the detaining authority to issue detention order immediately after the arrest of the detenu in said FIR No. 122/01 for offence under section 364/302 RPC and 7/27 of Arms Act of Police-Station, Banihal. This unexplained delay in passing detention order has vitiated the detention order. (See 1993 Supp (2) SCC 61). 6. Besides this, admittedly the detention order impugned came to be passed by the respondent-2 the District Magistrate, on 24.2.2001 and the same as per his statement in the said counter-affidavit came to be executed on 5.3.2001, this being so, there is delay of more than 8 days in executing the detention order when as per own showing of respondent-2, the detenue was arrested on 20-09-2001 in case FIR No. 122/01 for offence under section 364/302 RPC and 7/27 Arms Act of Police Station Banihal. The apex court in a case titled K.P.M. Basheer v. State of Karnataka & Anr. (1992) 2 SCC 295 in para-11 of the Judgement while dealing with the point held as under:-- "11. 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 of detention and the purpose of detention is snapped on account of undue and unreasonable delay in securing the appellant/ detenu and detaining him. We have now come to the conclusion that the order of detention is liable to be set-aside on this ground alone, we are dealing with other objections raised in the memorandum of appeal as well as in the writ petition." 7. The above view was reiterated by the apex court in Mohammad Farook v. Joint Secretary to Govt. of India & Ors. reported as (2000)2 SCC 360. It is observed in para-9 of the judgement that:---- "There is a catena of judgements on this topic rendered by this court wherein this court emphasised that the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated. Since the law is well settled in this behalf we do not propose to refer to other judgements." 8. Since the law is well settled in this behalf we do not propose to refer to other judgements." 8. In the instant case as indicated there is unexplained delay of about five months in passing the impugned Detention order and also unexplained delay of execution, of the order when the Detenu was in custody i.e. very much available. There is not even a whisper in the counter-affidavit of respondent-2 as to why the order of detention was not executed immediately after its issuance. 9. The commulative effect of all this is that the satisfaction recorded by respondent No. 2 in passing the impugned detention order gets vitiated. Consequently, the order of detention is liable to be quashed. 10. Therefore, the impugned Detention order is quashed. It is ordered that the Detenu namely Farooq Ahmed, Chopan son of Ghulam Rasool Chopan R/o Chafkani Pogal Tehsil Banihal District Doda be set at liberty forthwith unless he is required, arrested in any other case pending against him. Copy of this order be communicated to the concerned authority and another copy of this order be given free of cost to the petitioner. Record be returned to the learned GA. The petition is disposed of.