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2002 DIGILAW 342 (JK)

Gh. Hassan Parray v. State

2002-11-05

B.L.BHAT

body2002
1. Detenue Ghulam Hassan Parray S/O Late Abdul Khaliq Parray R/O Batnoor Tral, district Pulwama, through his friend Mohammad Ashraf Lone has sought indulgence of this court through the medium of the instant writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir State, for quashment of detention order No. 17/DMP/ 2001 dated: 21-06-2001. 2. It is inter-alia maintained in the petition that the detenue Ghulam Hassan Parray, who is a peace loving person, was arrested by the security forces on 27-03-2001 on false and frivolous accusat and came to be booked in FIR No. 20/2001 for the offence punishable under section 7/25 Indian Arms Act and in FIR No. 5/2001 for the offence under section 307 RPC and 7/25 IAA, both of Police Station Tral: that while in police custody in the said case, respondent No. 2 came to pass the detention order impugned dated: 21 -06-2001, whereby detenue was ordered to be detained for a period of 12 months and came to be lodged in District Jail Kathua: that the order of detention is bad in law because of the fact that the detenue was arrested on 17-03-2001 in FIR Nos. 20/2001 and 5/2001 both of Police Station Tral, in winch the detenue had never applied for bail: that the detaining authority without assigning any compelling reasons for passing the detention order impugned, came to pass the said order; that the detenue had studied only upto to 6th standard and is able to read and write only Urdu and Kashmiri languages; that the grounds of detention are couched in english language which is neither intelligible nor understandable to the detenue; that no translation copy of the detention order impugned was served upon the detenue; that the detaining authority has not supplied the copy of the dossier and other material relied upon by him in passing the impugned order; that the grounds of detention are vague; that the detaining authority has not formulated the grounds of detention and has not recorded his subjective satisfaction, but has straightway relied upon the dossier submitted to him in this regard. 3. On admission of the writ petition, respondent No. 2, District Magistrate. 3. On admission of the writ petition, respondent No. 2, District Magistrate. Pulwama, after being put on notice, filed his counter affidavit, wherein it is inter-alia stated that the detenue was detained with a view to prevent him from acting in any manner preJudicial to the security of the State; that the detention order has been based on the grounds detailed in the memo of grounds of detention; that the detenue was initially arrested in case FIR No. 20 of 2001 of P/S Tral and as there was apprehension of his being released on bail, the order of detention impugned has been passed on 21-06-2001 and same came to be approved by the Government on 29-06-2001 and it is thereafter on 04-07-2001 that the order of detention was executed and the detenue was taken into preventive detention; that after the approval of the said detention order, the case was referred to the State Advisory Board which opined in favour of the continued detention of the detenue, consequently Govt. pursuant to section 17 of the Jammu and Kashmir Public Safety Act. 1978 passed the order dated: 23-08-2001, confirming the detention of the detenue and further ordered that the detenue be detained for a period of 24 months from the date of his detention; that the detenue was apprised and informed of his right of making a representation to the Government against his detention order. Heard learned counsel for the parties and also perused the file. 4. The petitioner, as indicated, has assailed the order of detention on various grounds but the learned counsel appearing on his behalf has laid much stress on the ground that since the detenue was arrested on 27-03-2001 in FIR No. 20/2001 of P/S Tral under section 7/25 IAA and in FIR No. 5/2001 of Police Station Tral for the offence under section 307 RPC and 7/25 IAA and there were no compelling reasons for passing the detention order impugned because the detenue or any person on his behalf had never applied for bail in the said cases. It is further submitted that the impugned detention order does not disclose that there is any apprehension of detenue being released on bail. 5. I have gone through the detention order which is marked as annexure "A". It is further submitted that the impugned detention order does not disclose that there is any apprehension of detenue being released on bail. 5. I have gone through the detention order which is marked as annexure "A". This detention order nowhere discloses that the detaining authority has recorded his satisfaction to the effect that there is immanent possibility of the detenue being released on bail in the FIR No. 5/2001 under section 307 RPC and 7/25 IAA and FIR No. 20/2001 for the offence under section 7/25 IAA. both the Police Station Tral, for which he stands booked. 6. True it is that in the memorandum of grounds of detention marked as annexure-B on the file reveals that "at present you are under security of police and there is every likelihood of resuming your activities after gelling bailed out.� The detaining authority while formulating the grounds has not indicated any material on which he has recorded his satisfaction to the effect that there is likelihood of the detenue to be released on bail. In the counter affidavit also, the detaining authority has not referred to any material on which he has come to record his satisfaction to this effect. Besides this, from the perusal of the file, there is nothing to show that the detenue either himself or anybody else on his behalf has taken any steps forgetting himself released on bail. The Apex Court in case titled as Amrit Lal and others Vs. Union of India reported as 2001 1 Supreme Court Cases 341. while dealing with this question, has held as under:- As held in Binod Singh case (1986) 4 SCC 416, if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. There must be cogent material before the officer passing the detention order that the deteune is likely to be released on bail. The inference must be drawn from the available material on record and must not be ipse dixit of the officer passing the order of detention. In the present case the detenue being released on bail was, however, not available in the reasoning as provided by the officer concerned. The reasoning available is the "likelihood of his moving an application for bail™, which is different from "likelihood to be released on bail". In the present case the detenue being released on bail was, however, not available in the reasoning as provided by the officer concerned. The reasoning available is the "likelihood of his moving an application for bail™, which is different from "likelihood to be released on bail". This reasoning is not sufficient compliance with the requirements as laid down. The available cogent material in this case was the likelihood of having a. bail application moved in the matter but not obtaining a bail order. Therefore, the detention order is liable to be quashed," 7. Further perusal of the detention order dated: 21-06-2001 on the file reveals that it does not disclose compelling reasons for recording the detention order impugned, when admittedly the detenue has been arrested on 27-03-2001 in FIR No. 20 of 2001 for the offence punishable under section 7/25 IAA and in FIR No. 5/2001 for the offence under section 307 RPC and 7/25 IAA of P/S Tral. 8. Law is well settled on the point that when the detenue is in police custody, his detention under preventive law is only possible when there are compelling reasons justifying such detention despite the fact that the detenue is already in detention. Reference in this behalf is made to a case tilled Surya Prakash Shanua Vs. State of U.P. 1995 AIR SCW 1841. 9. As indicated that the detenue came to be arrested in FIR No. 20/2001 for the offence punishable under section 7/25 IAA and FIR No. 5/2001 for the offence punishable under sections 307 RPC and 7/25 IAA, both of Police Station Tral on 21-03-2001 and the detention order impugned came to be recorded by respondent No. 2 on 21-06-2001. Since there is delay of more than three months in recording the detention order after the arrest of the detenue, therefore, this can be safely said that live and proximity link between the grounds of detention and purpose of detention has snapped on account of the undue and reasonable delay. In this connection reference is made to a judgment of the Apex Court in K.P.M. Bashir Vs. State of Karnataka and another, reported as AIR 1992 SC 1354. Also see 1993 Suppl, 2 SCC 617. 10. Having regard to the above law and the facts, the detention order recorded by respondent No. 2 is bad in law and is liable to be quashed. 11. State of Karnataka and another, reported as AIR 1992 SC 1354. Also see 1993 Suppl, 2 SCC 617. 10. Having regard to the above law and the facts, the detention order recorded by respondent No. 2 is bad in law and is liable to be quashed. 11. The petition is accordingly allowed and the detention order dated: 21-06-2001 passed by respondent No. 2 is hereby quashed and the detenue is directed to be set at liberty forthwith, unless required in any other case. A copy of the order be forwarded to the concerned authority.