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2003 DIGILAW 408 (JK)

Tariq Ahmad Khan v. State Of J. &K.

2003-12-23

SYED BASHIR-UD-DIN

body2003
Subject Tariq Ahmad Khan was detained, by the District Magistrate, Pulwama, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, with a view to prevent him from acting in any manner prejudicial to the security of the State, by order No. 47/DMP/2002 dated 10th Jan 02. This order is under challenge in this petition. 2. The learned counsel for petitioner urges following grounds in support of his contention that the detention order in question is vitiated :- First, that at the time of passing of detention order, the detenu was already facing trial in FIR No. 323/96, as an under-trial and there was no compelling reason for the detaining authority to pass the order in question. Neither, the detaining authority is aware that detenu is in punitive detention, nor of the fact that he has not moved any bail application; Second, that the detaining authority has failed to supply the grounds of detention in the language (Urdu/Kashmiri), which detenu understood thereby prejudicing him to make an effective representation to Government, against the order of detention and Third, that no material is supplied to detenu notwithstanding the fact that the detaining authority has relied upon the material referred in the grounds and thereby the subject is again prejudiced, as above. 3. Learned Additional Advocate General, while countering the contentions of the petitioners counsel submits that as the subject is a terrorist with known background and was likely to be released on bail in the regular case, therefore, the detaining authority being aware of this circumstance consciously passed the detention order. The admittance of the subject to bail in the regular case would be at the cost of security of the State, and therefore, there was a compelling reason to detain him under the Public Safety Act. He further contends that only material relied upon for detention in question is referred in grounds of detention and there is no other material which is relied upon to detain the subject. The grounds of detention are supplied to the detenu. Viewed thus, detenue is not prejudiced on that count, more so, when even the grounds give sufficient details with clarity. The grounds of detention are supplied to the detenu. Viewed thus, detenue is not prejudiced on that count, more so, when even the grounds give sufficient details with clarity. So far the contention of alleged prejudice to the detenu on the count of not being furnished the transcript or translated copy of the detention order and material relied upon is concerned, it is stated by the counsel for the State that the order of detention and material relied upon has been read over to the detenu in Urdu/Kashmiri language, which he understood, and therefore, no prejudice is caused to him and, as such, this ground of challenge is not equally available to the detenu. The Additional Advocate General has produced detention file of detenu. Same is perused. 4. In the counter, it is specifically stated that looking to the grounds of detention, the activities of the detenu are highly prejudicial to the security of the State, no matter, he was held as under-trial. Ordering detention of the subject under the J&K Public Safety Act is seen for the reason that the militants of H. M. (Hizbul Mujahideen) used to be in touch with the subject and the subject a die-hard would urge his friends and relatives who visited him daily to continue with the illegal activities and armed struggle. It is also not unknown that even in heinous offences, persons have been given bail mainly for the reason that the witnesses generally under fear psychosis do not appear or on appearance do not speak truth in cases involving militants. The apprehension of the detaining authority that the detenu may come out on bail cannot be said to be wholly untrue. The satisfaction, it is stated, has to be of the detaining authority. The detaining authority being aware that the detenu was being held in custody in a pending criminal case and in the context of background facts, that there was sufficient material before the detaining authority to draw the satisfaction of possibility of the detenu of being released from custody and in which eventuality having regard to the antecedent activities of the subject, detenu may indulge in activities prejudicial to the security of the State, compelling circumstances cannot be ruled out. In above circumstances, it cannot be said that compelling reasons are not made out to warrant detention of the subject under Public Safety Act. In above circumstances, it cannot be said that compelling reasons are not made out to warrant detention of the subject under Public Safety Act. In Rameshwar Shaw v. District Magistrate, Burdwan, (1964) 4 SCR 921, a three Judge Bench of the Apex Court observed as under :- "The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite that the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account, the nature of the antecedent activities of detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." 5. Merely because no bail application is pending before the trial court, it cannot be necessarily held that there is no possibility of detenu being released on bail. In Ahmad Nassar v. State of Tamil Nadu, (1999) 8 SCC 473, the Apex Court observed as under :- ".......merely because no bail application was then pending is no premise to hold that there was no likelihood of his being released on bail. The words `likely to be released connote chances of being bailed out, in case, there be pending bail application or in case if it is moved in future is decided. The word `likely shows it can be either way." 6. The words `likely to be released connote chances of being bailed out, in case, there be pending bail application or in case if it is moved in future is decided. The word `likely shows it can be either way." 6. The contention that the order of detention and the grounds were not communicated to the detenu and the same has caused prejudice qua his right of representation against the detention, has to be seen in the context that in the counter affidavit, the detaining authority i.e. respondent No. 2, District Magistrate, Pulwama, has positively stated that detention has been ordered on the grounds given in detail which have been supplied to the detenu against receipt and no other material is relied on. The order of detention shows that detention in question is ordered without reference to any material except grounds of detention. The grounds of detention run in two pages and the details including the facts and circumstances are given in the grounds with reference to the details of FIR, offences, antecedent and prejudicial activities of the detenu and thus, it cannot be said that the subject is prejudiced on this count. In the memo of petition, it is stated that the detenu is illiterate and is not able to read and write. This circumstances when kept in view, then from perusal of endorsement on the back of order of detention and the receipt of grounds of detention executed by the subject and countersigned by the Dy. Superintendent, Central Jail, Kotbhalwal, the place of lodgment of detenue, it is manifest that the contents of order as well as the grounds have been fully explained to the detenu in urdu/kashmiri language, which the detenu has understood. In token of receipt of the grounds and his having understood the grounds, he has executed the receipt. The detenu has also been informed of his right to make representation. In such circumstances, the detenu cannot be said to be prejudiced and alleged failure to supply the material, cannot be said to have impaired his right to make effective representation against the detention. The detenu has also been informed of his right to make representation. In such circumstances, the detenu cannot be said to be prejudiced and alleged failure to supply the material, cannot be said to have impaired his right to make effective representation against the detention. In Rustam Wani v. State of Jammu and Kashmir, LPA (HC) No. 57/01, decided on 28th Aug 01, a Division Bench of this Court, speaking through H. K. Sema, Acting Chief Justice, as His Lordship then was observed :- " Now the question arises that whether non supply of copy of grounds of detention in the language which is understood by him would make any difference because the detenue is an illiterate person. In our view, since admittedly, the detenu is an illiterate persons, instead of supplying copy of the grounds of detention if it is explained properly and fully in the language understood by him, would be the sufficient compliance of the mandate of Article 22(5) of the Constitution ......." 7. In the aforesaid view of the matter, this petition cannot succeed and is dismissed as such. Record is returned to the counsel appearing for the State.