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2003 DIGILAW 365 (JK)

Ab. Ahad Tantray v. State Of J. &K.

2003-11-25

MUZAFFAR JAN

body2003
1. Habeas Corpus petition has been filed, praying for direction to quash the order of detention passed under No.50 of 2002 dated 16.06.2002. 2. The main submissions made in the petition are that the detenue came to be arrested in FIR 22/2002 under section 7/25 Indian Arms Act. Police Station Bandipora and during the continuation of arrest of the detenue in the said FIR, the order of detention was passed on 16th of June 2002 by District Magistrate Baramulla and was executed on 19th of July 2003. It is further submitted that the detenue being an illiterate person was not informed of his right to make a meaningful representation in Kashmiri language and was not furnished with the entire material forming the basis of grounds of detention to enable the detenue from making a meaningful representation, against the order of detention. The detenue during his arrest in FIR 22/2002 in Police Station Bandipora, had not applied for bail and would not be released on bail in a non boilable offence, as such there was no requirement of justification for the detaining authority to pass the order of detention, without revealing the compelling reasons to pass the order of detention. On these submissions, it is prayed that order of detention be quashed. 3. While admitting that the detenue was arrested in FIR 22/2002 in Police Station Bandipora, the stand of the respondents taken in the counter is, that the order of detention was passed on subjective satisfaction for involvement of detenue in activities found prejudicial to the security of the state. It is further submitted that at the time of execution of the order of detention, the grounds of detention were explained to the detenue who is illiterate person in a language which the detenue understood and in to ken of having understood the grounds, the detenue affixed thumb impression on the receipt on acceptance of the record, revealing the grounds of detention. On this submission, it is prayed that order of detention has been passed after making substantial compliance with the procedural requirements and needs no interference. 4. Heard Learned Counsel for the parties. On consideration of facts and circumstances, the admitted position revealed from the record, is that the detenue was arrested on 10th of February 2002 in FIR 22/2002 under Section 7/25 Indian Arms Act, Police Station Bandipora. 4. Heard Learned Counsel for the parties. On consideration of facts and circumstances, the admitted position revealed from the record, is that the detenue was arrested on 10th of February 2002 in FIR 22/2002 under Section 7/25 Indian Arms Act, Police Station Bandipora. During the continuation of arrest of the detenue, order of detention came to be passed on 16.6.2002. The order of detention was executed on 19th of July 2002, that is after a period of 31 days. There is nothing on record to show that the detenue was not available for execution of the order of detention during the period of 31 days. Admittedly, no time period is provided to execute the order of detention but the Apex Court has taken a consistent view, that the order of detention should be executed without undue delay. 5. It is observed that in case the detenue is not available and delay has been caused, then no fault can be attributed to the agency, executing the order of detention, but when the detenue is available, the Apex Court has held that the order of detention must be executed without undue delay, in order to achieve the purpose for which the order of detention is passed and to prevent snapping of link between the desired effect of passing of order of detention and the nexus of the prejudicial activities attributed to the detenue. 6. In the facts and circumstances of the present case, the detenue who is alleged to be upper ground worker of some militant organization is stated to be found indulging in activities prejudicial to the security of the State and considering the fact that the detenu was available, the delay caused in executing the order of detention would snap the link between the purpose, for which the order of detention was passed and make the order in-effective on this ground. Therefore, for reasons given above, the order of detention bearing No.50 of 2002 dated 16.6.2002 is quashed. The detenue Abdul Ahad Tantray S/o Somalia Tantray R/o Haripora Attawatoo Bandipora shall be released forthwith unless required in any other case.