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2002 DIGILAW 363 (JK)

Aijaz Ahmad Shah v. State

2002-11-27

B.L.BHAT

body2002
1. In this writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, Aijaz Ahinad Shah through his father Nazir Ahmad Shah has called in question his detention order No. DMS/PSA/63 dated: 24-01-2002 passed by respondent No. 2. In this petition, it is inter-alia maintained that the detenue came to be arrested on 12-11-2001 by the security forces and since then, the detenue continues to be in detention; that the petitioner obtained the grounds of detention unofficially from the office of respondent No. 2; that the detention is bad on the ground that procedural safeguards prescribed under the provisions of the J&K Public Safety Act. Articles 21 and 22 of the Constitution have not been followed/complied with; that the respondents have detained the detenue on 24-01 -2002 under the said detention order when he was already in their custody; that the grounds of detention are vague, indefinite, devoid of any particulars and are based on conjectures and also bereft of required satisfaction by the detaining" authority: that the grounds of detention supplied to the detenue are in English language, when the detenue docs not understand the said language: that the translation copy of the grounds of detention was never supplied to the detenue; that one of the grounds of detention are that the detenue was arrested in FIR No. 209/2001 under Section 7/25 Indian Arms Act of Police Station Safakadal, but the copy of that FIR has not been furnished to the detenue. On this ground as well the detention order is illegal and unconstitutional. 2. On admission of this petition, respondent No. 2 caused his appearance through the Government Advocate and filed his counter affidavit, wherein it is submitted that the detenue came to be arrested initially incase FIR No. 209 of 2001 of Police Station Safakadal. Srinagar and has stated that there was apprehension of his getting released on bail, therefore, keeping in view The activities of the detenue spelt out in the grounds of detention it was found necessary to detain him by invoking the provisions of the Public Safety Act; that the detention order came to be issued on 24-01-2002 and this order came to be executed on the detenue on 31-01-2002. The said order came to be confirmed by the Government on 03-2-2002. The said order came to be confirmed by the Government on 03-2-2002. The other paras of the petition stand controverted by the respondent No. 2. 3. Heard Mr. Hussain, Senior counsel appearing for the petitioner and Mr. R. Gadda, learned GA vice Mr. Gh. Mustaffa. 4. Though the petitioner has assailed the order of detention impugned in this petition on various grounds, but the learned counsel for the petitioner has laid emphasis/stress on the ground that the detenue at the time of issuance of detention order was already in the custody of the police in connection with FIR No. 209/2001 TJ/s 7/25 1AA of Police Station. Safakadal, but no compelling reasons have been disclosed in the detention order that the detenue if released on bail shall indulge in the activities prejudicial to the security of the State and causing threat to the public order. He has also submitted that the detenue came to be arrested on 12-11-2001 in FIR No. 209-/2001 and the order impugned came to be issued on 24-01-2002 and the said order came to be executed on 03 -02-2002 and therefore there is delay both in passing the detention order as well as in the execution of detention order, when as per own showing of the respondents, the detenue was very much available to them in police custody. The detention order is, therefore, liable to be quashed on this ground alone. 5. From the bare perusal of the grounds of detention, which is annexure-A to the writ petition, it is manifest that the detenue came to be arrested on 12-11-2001 by Border Security Force along with six hand grenades, 16 rifle grenades and in this behalf a case under FIR No. 209-/2001 under Section 7/25 IAA came to be registered by Police Station, Safakadal. This being so. there is unreasonable delay of more then two months in the issuance of the detention order, as a result of which live and proximate link between the grounds of detention and the purpose of detention gets snapped. Their lordships of the Apex Court while dealing with a similar question in case titled K.P.M Basheer Vs. State of Karnataka and another. AIR 1992 SC 1353, in para 11 of the judgment have observed as under:- "11. Their lordships of the Apex Court while dealing with a similar question in case titled K.P.M Basheer Vs. State of Karnataka and another. AIR 1992 SC 1353, in para 11 of the judgment have observed 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 the undue and unreasonable delay in securing the appellant/detenue and detaining him. As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone, we are not dealing with of her contentions raised in the memorandum of appeal as well as in the writ petition.� 6. The grounds of detention formulated by respondent No. 2, as indicated, reveal that the detenue was arrested on 12-11-2001 in FIR No. 209/2001 of P/S Safakadal, for the offence under Section 7/25 Arms Act but despite being aware of the fact, the detaining authority has failed to explain the delay on his part in passing the detention order on 24-01-2001 i.e. after a delay of about two months which he was under an obligation to explain and disclose in the order of detention. (See 1993 Supp. 2 SCC 61). 7. The law is well settled on the point that when a person is in custody in connection with a substantive offence, the detaining authority has to disclose the compelling circumstances for detaining a person under the preventive law i.e. that there is likelihood of detenue getting released on bail and that after being released on bail, there is likelihood that the detenue will again resort to such activities which shall be prejudicial to the security of the State. In this behalf reference is made to a case titled Surya Prakash Vs. State of UP, 1995 AIR SCW 1841. 8. True it is that the grounds of detention though reveal that the activities of the detenue are highly prejudicial to the security of the State and nothing on record to show that the detenue had taken any step for being released on bail. Their lordships of the Apex Court in case Amrit Lal and others Vs. 8. True it is that the grounds of detention though reveal that the activities of the detenue are highly prejudicial to the security of the State and nothing on record to show that the detenue had taken any step for being released on bail. Their lordships of the Apex Court in case Amrit Lal and others Vs. Union of India reported as 2001(1) SCC 341, while dealing with a similar point have in paras 6 and 7 of the judgment observed as under:- "6. The requirement as noticed above in Binod Singh that there is likelihood of the petitioners being released on bail however, is 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 in our view, is , not sufficient compliance with the requirements as laid down. 7. The emphasis, however in Binod Singh case that before passing the detention order, the authority concerned must satisfy himself of the likelihood of the petitioners being released on bail and that satisfaction ought to be reached on cogent material. Available cogent material is the likelihood of having a bail application moved in the matter of but not obtaining a bail order." Viewed thus, the detention order recorded by respondent No. 2 is bad in law. The petition is accordingly allowed and the detention order impugned in this petition is quashed. Respondents are directed to release the detenue forthwith form preventive detention unless he is required in any of her pending proceeding or case.