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2002 DIGILAW 30 (JK)

Gh. Rasool Hajam v. State

2002-02-26

B.L.BHAT

body2002
1. Through the medium of this petition of Habeas Corpus, Detention Order No. DMS/PSA/50 dated: 12-07-2000, passed by the District Magistrate Srinagar under Section 8 of the Jammu and Kashmir Public Safety Act 1978, detained Gh. Rasool Hajam S/o Gh. Mohammad Hajam R/o Wussan Kangan has been challenged on various grounds enumerated in the petition. 2. The respondent District Magistrate has filed counter affidavit wherein he has resisted the petition but has stated in para No. 1, of the said affidavit that the detention order was passed for a period of 24 months from the date of detention by the Govt. under Order No. Home-PB-V/3108/2000 dated: 22-10-2000. The grounds of detention were read over and explained in Urdu and Kashmiri language on 28-08-2000 which he understands fully. The detenue has been informed of his right to file the representation to the government. The detenue has acknowledged receipt of grounds of detention, it is being read over and explained to him in Urdu and Kashmiri languages, which the detenue understands. That the case of the detenue was placed before the Advisory Board for its opinion. The State Advisory Board opined on 19-10-2000 that the sufficient cause/grounds exists for his continued detention. That the detention warrant was executed and detenue was taken into preventive detention/custody on 28-08-2000 after contents of warrant were read over and explained to him in Urdu and Kashmiri languages which the detenue understood. The grounds of detention were also served to the detenue which is evident from the receipt dated: 28-08-2000. 3. Heard the learned counsel for the parties. 4. Though the impugned order of detention is assailed on various grounds but Mr. Shaheen, the learned counsel for the petitioner has laid much emphasis on the un-explained delay of execution of the impugned detention order on the detenue. He submits that the detention order was issued by the respondent District Magistrate, Srinagar on 12-07-2000 and the same has been executed by the detaining authority on 28-08-2000. This inordinate delay in executing the said detention order has completely vitiated the subjective satisfaction of the detaining authority the respondent No.2. Besides, this the detenue before his detention was booked for the commission of an offence under Section 7/25 by police Kangan in FIR No. 41/2000, in which he was released on bail by the learned Judicial Magistrate Kangan, as is manifest from the annexure B on the writ file. Besides, this the detenue before his detention was booked for the commission of an offence under Section 7/25 by police Kangan in FIR No. 41/2000, in which he was released on bail by the learned Judicial Magistrate Kangan, as is manifest from the annexure B on the writ file. The detaining authority without mentioning it that the detenue being already on bail in the said FIR has said in the grounds of detention that "it is clear that your activities are highly prejudicial to the security of the State. You may get bail from the court. Your remaining at large will be a threat to the security of the State. Under such compelling circumstances, it has become imperative to detain you under Public Safety Act, 1978 for which a separate order has been issued." Therefore, the detaining authority, while recording the subjective satisfaction has not applied his mind to the facts placed before him. 5. Mr. Fidda, GA, the learned counsel for the respondents fairly concede to this argument of the learned counsel for the petitioner that there is an inordinate delay of 37 days in execution of the impugned detention order upon, the detenue. For this the State and other respondents have no explanation to offer. 6. Considered the submission of the learned counsel for the parties and find from the record that the detention order has been issued en 12-07-2000 and admittedly the same has been executed on 18-08-2000, as such there is inordinate delay of 37 days in the execution of the detention order upon the respondent. From all this, the state has no explanation nor is it stated in the counter that any step for the execution of the detention was taken or that the detenue had gone in hiding or that there were any impediment in executing the said order. Their Lordships of Apex Court in a case A. Mohammad Farooq Vs. Jt. Secy. To G.O.I, and Ors. reported in (2000) 2 SCC 360, in a writ petition under Article 32 of the Constitution of India filed by the detenue challenging the legality and correctness of the detention order have observed in para No. 9 and 10 of the judgment as under:- 9. Jt. Secy. To G.O.I, and Ors. reported in (2000) 2 SCC 360, in a writ petition under Article 32 of the Constitution of India filed by the detenue challenging the legality and correctness of the detention order have observed in para No. 9 and 10 of the judgment as under:- 9. There is a catena of judgments 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 judgments which have brought to our notice. 10. As indicated earlier the only explanation given by the detaining authority as regards the delay of 40 days in executing the detention order is that despite their efforts the petitioner could not be located at his residence or in his office and therefore the order could not be executed im* mediately. No report from the executing agency was filed before us to indicate as to what steps were taken by the executing agency to serve the detention order. In the absence of any satisfactory explanation explaining the delay of 40 days, we are of the opinion that the detention order must stand vitiated by reason of non-execution thereof within a reasonable time. From Annexure P-2 (the proceeding-sheet of the Metropolitan Magistrates Court, Madras), it appears that the petitioner( accused) was present in the Court of the Additional Chief Metropolitan Magistrate on 25-02-1999 as well as on 25-03-1999. Despite such opportunities neither the detaining authority nor the executing agency as well as the sponsoring authority were diligent to serve the detention order on the petitioner at the earliest. In this view of the matter, we are of the opinion that the subjective satisfaction of the detaining authority in issuing the detention order dated: 25-02-1999 is vitiated. It is in these circumstances not possible for us to sustain the detention order.� 7. As indicated that the impugned order of detention has been executed after more than 37 days upon the detenue despite fact that the detenue was available at his place and there is nothing in the counter affidavit to show that the detenue had gone in hiding which resulted in inordinate delay of 37 days in implementing the detention order upon him. This being so, this inordinate delay in executing the detention order, in view of the afore law laid down by the Apex Court of India vitiates the subjective satisfaction of the detaining authority, which renders the order of detention liable to be quashed on this ground alone. Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue shall be set at liberty forthwith unless he is detained/arrested or required in any other case. Copy of this order be communicated to the concerned authorities for information and necessary action and a copy of the same be also furnished to the learned counsel for the petitioner free of cost.