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2002 DIGILAW 364 (JK)

Mohd. Yousuf Dar v. State

2002-11-27

B.L.BHAT

body2002
1. Detenue through his son Mohd Yousuf Dar has sought indulgence of this court through the medium of this writ petition filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution for quashing the detention order No. DMS/PSA/15 dated: 19-04-2002 passed by respondent No. 2 (District Magistrate Srinagar). 2. It is inter-alia maintained in the writ petition that the detenue Abdul Gani Dar S/O Mohammad Abdullah Dar R/O Rusoo, Beerwa was arrested on 16-02-2002 near Gantagar, Lal Chowk, Srinagar by Border Security Force personnel and since then he continue to be in detention; that the detenue came to be detained under the provisions of Public Safety Act vide order No. DMS/PSA/15 dated: 19-04-2002, the copy whereof along with the grounds of detention were obtained by the petitioner from the office of respondent No. 2; that neither the order of detention nor the grounds of detention alongwith the material relied upon by the detaining authority have been supplied to the detenue: that the grounds of detention have not been explained to the detenue in the language he understands. It is further averred that the detenue has not been informed of his right of making a representation against his detention to the Government, that one of the grounds of detention are that the detenue was arrested on 16-02-2002 in FIR No. 28/2000 under section 3/4 POTO of Police Station Shaheed Gunj, but the copy of the said FIR has not been furnished to the detenue. On this ground as well the detention order is illegal and un-constitutional. 3. On admission of this petition, order for issuance of notice to the respondents came to be recorded by this court on 16-05-2002. On 23-07-2002, Mr. Ghulam Mustaffa, Government Advocate caused his appearance on behalf of the State who was given four weeks time to file counter. Thereafter the case again came to be listed before the court on 27-08-2002, when Mr. Rafiq Fida appeared on behalf of Mr. Ghulam Mustaffa, GA, who was directed to fire counter within four weeks. The court order 05-11-2002 reveals that Mr. Anil Bhan appearing for respondent No. 4 had filed the counter and two weeks time was further extended to learned counsel appearing for the respondents viz Mr. Ghulam Mustaffa for filing counter with the rider that this shall be last opportunity. On 12-11-2002, Mr. The court order 05-11-2002 reveals that Mr. Anil Bhan appearing for respondent No. 4 had filed the counter and two weeks time was further extended to learned counsel appearing for the respondents viz Mr. Ghulam Mustaffa for filing counter with the rider that this shall be last opportunity. On 12-11-2002, Mr. Fida causing appearance on behalf of Mr. Ghulam Mustaffa submitted before the court that the counter has been filed in the Registry, which was not found existing on the file, as a result of which, direction came to be issued to the Registry trace out the counter filed by the State respondents. However, the Registry has filed a report that no counter has been filed by the Government Advocate appearing on behalf of the State. This being so, the conduct of Government Advocate Mr. Fida is depricated and right to file counter by respondents 1 to 3 is closed. 4. Heard learned counsel for the petitioner and Mr. Ghulam Mustaffa, appearing for the State. 5. Though the petitioner has assailed the order of detention impugned in the petition on number of grounds which have gone uncontroverted, but learned counsel for the petitioner has laid emphasis 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. 28/2002 under section 3/4 POTO of P/S Shaheed Gunj, but no compelling reasons have been indicated in the detention order that the detenue if released on bail shall indulge in the activities prejudicial to the security of State and causing threat to public order. He has also submitted that the detenue came to be arrested on 16-02-2002 in FIR No. 287 2002 and the order impugned came to be issued on 19-04-2002, therefore, there is delay in passing the 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. 6. From the bare perusal of the grounds of detention, which is annexure-B to the writ petition, it is manifest that the detenue came to be arrested on 16-02-2002 by Border Security Force and in this behalf a case under FIR No. 28/2002 under section POTO came to be registered by police station Shaheed Gunj. 6. From the bare perusal of the grounds of detention, which is annexure-B to the writ petition, it is manifest that the detenue came to be arrested on 16-02-2002 by Border Security Force and in this behalf a case under FIR No. 28/2002 under section POTO came to be registered by police station Shaheed Gunj. This being so, there is unreasonable delay of more than 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 gels 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, inpara 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." 7. The grounds of detention formulated by respondent No. 3, as indicated, reveals that the detenue was arrested on 16-02-2002 in FIR No. 28/2002 of P/S Shaheed Gunj, for the offence under section 3/4 POTO, 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 19-04-2002 i.e. after a delay of more than two months, which he was under an obligation to explain and disclose in the order of detention. (Sec 1993 Supp. 2 SCC 61). 8. 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. 9. 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 that he may be released on bail, when there is nothing on record to show that the detenue has 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 petitioner 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 in application for bail, which is different from "likelihood to be released on bait. 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 petitioner™s 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 but not obtaining a bail order." 10. 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 from preventive detention unless he is required in any other pending proceeding or case.