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2003 DIGILAW 16 (JK)

Imtiaz Ahmad Zargar v. State Of J. &K.

2003-02-11

MUZAFFAR JAN

body2003
1. The Habeas Corpus petition has been filed to quash the detention Order No. DMS/PSA 58 dated 20-08-2002 passed by District Magistrate, Srinagar. The main submissions made in the petition are that the grounds of detention were not communicated to the detenue along with the record within the stipulated time in order to enable him to make an effective and meaningful representation to the Govt. against the order of detention. It is also submitted that the detenu was already in arrest with the respondents in FIR No.69/2002 under sections 3/4 of POTA and 7/25 Indian Arms Act and, as such, no bail could be granted to the detenu under any provisions of POTA, therefore, the detenu was not on bail but was all along in the custody of the respondents with liberty to them to execute the order of detention within the period stipulated under the Act. The order of detention was not executed within a reasonable time when the detenu was available to receive the order of detention. The District Magistrate, Srinagar, in the order of detention directed the lodgment of the detenu in Central Jail, Kotbalwal, beyond his territorial jurisdiction which could not be done under the provisions of Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as `the Act) and, as such, the order of detention, directing the lodgment of the detenu beyond the jurisdiction of district Srinagar is without jurisdiction and liable to be quashed on this pure question of law. 2. The stand taken by the respondents, while admitting that the detenu was involved and in arrest in FIR No.69/2002 under sections 3/4 POTA read with section 7/25 Indian Arms Act registered at Police Station Khanyar, from 16th July, 2002, is that the grounds of detention were communicated to the detenu within the stipulated time in accordance with the mandatory requirements under the Act. The order of detention was approved by the Government within twelve days. The detenu had obtained bail in the said FIR and was not available at the time of execution of the order of detention passed on 20th August, 2002. The order of detention was approved by the Government within twelve days. The detenu had obtained bail in the said FIR and was not available at the time of execution of the order of detention passed on 20th August, 2002. The detenu at the time of execution of the order of detention on 5th October, 2002 was communicated the grounds of detention and informed of his right to make representation against the order of detention and, as such, substantial compliance has been made to all the procedural requirements and no rights of the detenu have been infringed on this account. On these submissions it is prayed that the Habeas Corpus petition is without any merit and deserves to be dismissed. 3. Heard learned counsel for the parties at length. 4. Learned counsel for the petitioner submitted that in the order of detention issued under No. DMS/PSA/58 dated 20th August, 2002, the detaining authority, while exercising powers under section 8 of the Act, has directed that the detenu shall be detained and lodged in Central Jail, Kotebalwal, Jammu. As per the learned counsel, District Magistrate, Srinagar, had no power under section 8 of the Act to direct detention and lodgment of the detenu in Central Jail, Kotebalwal, Jammu, which is outside his territorial jurisdiction. Therefore, on this ground the order of detention is violative of the essential procedural requirements and consequently bad. 5. Considered the submission of learned counsel for the petitioner and perused the relevant provisions of the Act. The submission made by the learned counsel, it may be observed, cannot be sustained for multiple reasons. The powers to order detention of a person are provided under section 8 of the Act, the relevant portion of which is reproduced as under Any of the following orders, namely - i. Divisional Commissioners; ii. District Magistrates; may, if satisfied as provided in sub-clauses (i) and (ii) of clause (a) or clause (a-1) of sub-section (1) exercise the powers conferred by the said sub-section." 6. Under this section the Government has empowered District Magistrates to pass orders of detention. Section 10 of the Act empowers the Government to identify the places, where a detenu, who has been detained under section 8 of the Act by an authority competent to pass the order the detention, can be lodged. Section 10 of the Act reads thus: 10. Under this section the Government has empowered District Magistrates to pass orders of detention. Section 10 of the Act empowers the Government to identify the places, where a detenu, who has been detained under section 8 of the Act by an authority competent to pass the order the detention, can be lodged. Section 10 of the Act reads thus: 10. Powers to regulate place and conditions of detention -- Any person in respect of whom a detention order has been made under section 8 shall be liable: (a) to be detained in such place and under such conditions, including conditions as to the maintenance of discipline and punishment for breeching of discipline, as the government may by general or special order specify; and; (b) to be removed from one place of detention to another place of detention by order of the Govt." 7. The aforesaid provision of the Act provides that any person who has been ordered to be detained under section 8 of the Act shall be detained in such places which have been specified by a general or special order. It is not disputed that the Central Jail at Kotebalwal, where the detenu is ordered to be lodged and detained, is not a place specially specified by the Government for lodgment of the detenues. In these circumstances and from joint reading of Sections 8 and 10 of the Act, the scheme provided under the Act becomes clear and lays down that District Magistrate, as a competent authority under the Act, while issuing the order of detention under section 8, can also direct the detention and lodgment of the person under section 10 of the Act in places which are specifically identified by the Government by general or special order. Therefore, there does not seem to be any breach of either section 8 or of section 10 of the Act insofar as the District Magistrate, Srinagar, has the power to order the detention of the detenu in Central Jail, Kotebalwal, Jammu, which is a place specifically specified within the State for lodgment of the detenues under the Act. The submission of learned counsel for the petitioner is, accordingly, rejected. 8. The submission of learned counsel for the petitioner is, accordingly, rejected. 8. Learned counsel for the petitioner has produced a photocopy of communication dated 24th August, 2002 of Superintendent, Central Jail, Srinagar, addressed to Sub-Registrar, Judicial Magistrate, Ist Class, Srinagar, and medical reports enclosed therewith, which is taken on record alongwith its enclosures. The communication is extracted below: Sub: Medical report in respect of accused Imtiyaz Ahmad Zargar S/o Ab. Rahman R/O Sarafkadal, Srinagar. In compliance to your Honble Court directions dated 24.8.2002. In this connection `kindly find enclosed herewith the medical report in original received from Sr. Medical Officer of this Jail in favour of accused Imtiyaz Ahmad Zargar S/O Ab. Rahman R/o Sarafkadal, Srinagar, for your kind perusal." 9. The learned counsel submitted that, as is shown in the above communication of the Jail Superintendent, at the time of issuance of order of detention on 20th August, 2002, the detenu was still in custody of respondents, lodged in Central Jail, Srinagar, and was available to the respondents to effect the execution of the order of detention passed on 20th August, 2002. The learned counsel further submitted that from the record it is fully established that the detenu never applied for bail and was not granted bail and, in fact, could not have been granted bail since he was indicted in certain offences under POTA which Act does not admit of bail, while the detention order, passed on 20th August, 2002, was executed after a lapse of one month and fifteen days on 5th October, 2002 and, in the absence of acceptable explanation to justify the inordinate delay caused in the execution of the detention order, the order loses its significance and has to be quashed on this account as well. 10. The learned counsel representing the respondents, on perusal of the official communication of Superintendent, Central Jail, Srinagar, addressed to Sub-Registrar, Judicial Magistrate, Ist Class, Srinagar, dated 24th August, 2002 and the medical reports, has in fairness submitted that the record produced by the petitioner shows that the detenu was under treatment on 24th August, 2002 while he was lodged in Central Jail, Srinagar. 11. 11. The fact that the detenu was in custody of the respondents as on the date of issue of the detention order is further established from a bare perusal of the grounds of detention, especially the statement made in the last paragraph thereof, in which the Detaining Authority has expressed his apprehension that the detenu might get bail, therefore, the necessity of his detention to prevent him from resorting to such anti-national activities. Despite this, awareness shown in the last paragraph of the grounds, in paragraph (iii) of the counter-affidavit, the stand taken by the Detaining Authority is that the order of detention was passed on the satisfaction that the detenu had already obtained bail and was free to resume his anti-national activities. This contradictory stand taken in the grounds and the defence, i.e. counter affidavit, reveals non-application of mind on the part of the Detaining Authority and is a sufficient ground to quash the order of detention. This observation is further justified on account of absence of any record to show that the detenu had applied for bail in FIR No.69/2002 or that the had been granted bail by any court of competent jurisdiction in the said FIR. In the absence of official record to support the stand of the State, that the detenu was bailed out in the said FIR, coupled with the fact that the official communication of the Superintendent, Central Jail, Srinagar to the Court of Sub-Registrar, Judicial Magistrate, Ist Class, Srinagar, dated 24th August, 2002 reveals that the detenu was under treatment while being in custody in Central Jail, Srinagar on 24th August, 2002, it is fully established that the detenu was not released on bail when the order of detention was passed on 20th August 2002, but was in custody and available with the respondents to execute the order of detention. 12. Thus it is admitted on record that the order of detention passed on 20th August, 2002 has been executed after a delay of one month and fifteen days on 5th October, 2002 despite the fact that the detenu was available with the respondents to execute the order of detention. This inordinate delay caused in the execution of the order of detention has not been explained. On the other hand the stand taken in the counter affidavit is belied by the official record. This inordinate delay caused in the execution of the order of detention has not been explained. On the other hand the stand taken in the counter affidavit is belied by the official record. The delay in execution of detention orders was considered by the apex court in K.P.M. Basheer v. State of Karnataka AIR 1992 SC 1353. The relevant portion of the judgment is quoted hereunder: Under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link between the ground of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu 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 other contentions raised in the Memorandum of Appeal as well as in the writ petition.� 13. The above view was reiterated by the apex court in A. Mohammed Farook v. Jt. Secy. To G.O.I. (2000) 2 SCC 360 wherein the Court observed as under: There is a catena of judgments, on this topic rendered by this Court wherein this Court emphasized 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 were brought to our notice.� 14. As there is, admittedly, an unexplained delay of one month and fifteen days caused in execution of the detention order in the present case despite the availability of the detenu with the respondents, the subjective satisfaction of the detaining authority is vitiated. Consequently, the detention order deserves to be quashed. 15. In view of the above discussion, this Petition is allowed. Detention order No.DMS/PSA/58 dated 20.8.2002 passed by District Magistrate, Srinagar, is quashed. The detenu, namely, Imtiyaz Ahmad Zargar son of Abdul Rehman Zargar resident of Saraf Kadal, Srinagar is ordered to be set at liberty forthwith unless required in any other case.