Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 388 (JK)

Javeed Ahmad Bhat v. State

2003-12-09

S.K.GUPTA

body2003
Per Honble Mr. Justice S. K. Gupta (Oral) Javeed Ahmad Bhat son of Mohammad Amin Bhat resident of Nadigam Shopian, District Pulwama has been detained under section 8 of the J&K Public Safety Act, 1978 in order to prevent him from acting in any manner prejudicial to the security of the State for a period of 24 months and lodged in Sub-Jail Kote-Balwal, Jammu by District Magistrate, Srinagar, respondent No. 2, vide his order No, DMS/PSA/11 dated: 12.4.2002. 2. The detention order has been challenged by the detenu through his father Mohammad Amin Bhat on the following grounds: "(a) That no order of detention, copy of FIR, dossier, seizure memo or any other material relied upon by the detaining authority has been provided to the detenu which has incapacitated him from making an effective representation. (b) That the detaining authority has failed to record the compelling circumstances for passing the order of detention. The detenu had not applied for bail in respect of FIR No. 16/2002 mentioned kin the grounds of detention nor there any apprehension of bail at the time of passing of detention order. (c) That the detenu is conversant only with Urdu language as such the communication of grounds in English without any translatory script constitutes non-communication of grounds". 3. In the counter filed by the respondent obtained from the detaining authority Para a, b and c of the petition have been replied as under :- "(a) It is submitted that the material relied by the detaining authority for detaining the detenu is grounds of detention which stand supplied to the detenu against proper receipt on 6.5.2002. FIR has only a reference in the grounds and same has not been relied, so as there was no need of its being supplied to the detenu nor the dossier was required to be supplied to the detenu. (b) Ground (b) is denied. The activities of the detenu are itself sufficient and adequate to detain the detenu. It is the activities of the detenu which compelled the detaining authority to order detenus detention under PSA. The detenu may have not applied for bail but that does not provide any bar to detain the detenu. In criminal offence the detenu can be released. The activities of the detenu are itself sufficient and adequate to detain the detenu. It is the activities of the detenu which compelled the detaining authority to order detenus detention under PSA. The detenu may have not applied for bail but that does not provide any bar to detain the detenu. In criminal offence the detenu can be released. His release would have proved a big threat to the security of the State because his activities are highly prejudicial to the security of the State." (c) One the detenu does not know any language except Urdu, then there was no need to provide him translatory script. It is further submitted that the warrant was executed on 6.5.02 when the detenu was taken into preventive custody after contents of same were read over in Urdu and Kashmiri language to the detenu which he understood as in lieu thereof the detenu put his signature on the executed copy of detention order over its endorsement. Not only this the detenu also gave a receipt of having understood the contents of grounds of detention as also having received the copy of grounds of detention under his own signatures." 4. Mr. M. M. Khan, AAG appearing for the respondents when asked to produce the detention record of the detenu, stated at the bar that several steps were taken to procure the same from the detaining authority concerned but it has not been made available to him and thus expressed his inability to, provide the same for the perusal of the court. There is neither detention order on file nor any document with regard to the execution and service of the detention order on the detenu along with the material which form the basis of the subjective satisfaction of the detaining authority in formulating the detention order against the detenu for his preventive custody. The only documents on the Court file are grounds of detention and a communication addressed to the detenu by the District Magistrate, Srinagar informing him that he may make a representation to the Government against the detention order, if he so desires and further that he may inform the Home Department if he would like to be heard in person by the Advisory Board. 5. 5. Reply of the detaining authority in its counter affidavit to the grounds of challenge taken by the detenu in his petition, clearly envisages that the grounds of detention were provided to the detenu against the receipt dated: 6.5.2002 which too has not been placed on record with the counter affidavit. It is further stated in the reply that FIR, the reference of which is made in the grounds, has not been relied upon and there was no need of its copy to the detenu or the dossier required to be supplied to him. It is also admitted in the counter affidavit by the detaining authority that translation in script of the grounds of detention also has not been provided to the detenu at the time the grounds of detention were served upon him. However, the same are stated to have been read over in Urdu and Kashmiri languages which the detenu understood. 6. In the grounds of detention the detenu is stated to have been arrested on 19.2.2002 and FIR No. 16/2002 under section 7/25 Arms Act was registered with Police Station M. R. Gunj against the detenu. Then grounds of detention further disclose that two hand grenades and 10 rounds of A.K. 47 series were recovered from the detenu. Neither the copy of the FIR nor the disclosure statement nor the seizure memo under which the arms and ammunition is stated to have been recovered from the detenu, were supplied to him by the detaining authority. The detaining authority has also referred to the past anti national and subversive activities of the detenu without showing as to how much period prior to his arrest in the aforesaid case. The grounds of detention further show that the detaining authority has also considered the arrest of the detenu in the aforesaid FIR on which arms and ammunition are stated to have been recovered from his possession. What has been the record that formed the basis of detention is not even clear from the grounds of detention. The facts pertaining to the registration of a case and recovery of arms and ammunition from the possession of the detenu, if excluded from the grounds of detention, the remaining facts and circumstances leading to the past subversive anti national activities, without support from any document, manifestly appear to be general in nature, vague and indefinite. The facts pertaining to the registration of a case and recovery of arms and ammunition from the possession of the detenu, if excluded from the grounds of detention, the remaining facts and circumstances leading to the past subversive anti national activities, without support from any document, manifestly appear to be general in nature, vague and indefinite. It is settled proposition of law that where the order of detention refers to the past activities of the detenu, as giving rise to the satisfaction of the detaining authority, there must be proximity and rational connection between the past conduct of the person and the conclusion that this detention is necessary at the time of the order, as handed down by the Apex Court in "Abdul Manaff, S.K. v. State of West Bengal" (AIR 1974 SC 2066). 7. An order of detention presupposes that the person has or will have freedom of action to commit the mischief which is sought to be averted by preventive detention. When person is already in custody and there is no immediate prospect of his being released on bail or otherwise, the authority cannot be legitimately satisfied on the basis of his antecedents that he is likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. Where there is no proximate nexus between the past activities of the detenu and the preventive action, the order of detention deserves to be struck down. 8. The detenus right to make a representation includes his right to receive the copies of the statements and documents which are referred to in the grounds supplied, must be supplied expeditiously if the detaining authority as in the instant case failed to supply them and also the translation in script in the language understandable by the detenu, there would be denial of the detenus guaranteed right of effective representation and his continued detention would be illegal. This right is not dependant upon the detenus demanding the documents. 9. There is clear infraction of the mandate of Art. 22(5) of the Constitution which provides the communication of the grounds which include the documents and the record relied upon by the detaining authority for its satisfaction, to enable the detenu to make representation effectively against his detention and thus renders the order of detention invalid. 10. 9. There is clear infraction of the mandate of Art. 22(5) of the Constitution which provides the communication of the grounds which include the documents and the record relied upon by the detaining authority for its satisfaction, to enable the detenu to make representation effectively against his detention and thus renders the order of detention invalid. 10. For the reason delineated hereinabove, taken in its cumulative, the inevitable conclusion reached is that the impugned detention order is bad in law and is quashed. Respondents/ the officer having the custody of the corpus shall set him at liberty forthwith provided the detenu namely Javeed Ahmad Bhat son of Mohammad Amin Bhat resident of Nadigam, Shopian, District Pulwama is not required in any other case. The detenu shall be supplied with the copy free of cost and the order be communicated to the concerned for follow up action, by the registry.