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2003 DIGILAW 92 (JK)

Showkat Ahmed Malik v. State

2003-04-17

SYED BASHIR-UD-DIN

body2003
Showkat Ahmed Malik came to be arrested on 18.8.01 in connection with FIR No. 77/2001 U/S 307 RPC and 7/25 I. A. Act registered at Police Station Kokernag. Subsequently, while continuing in such custody, detention Order No. F-199/DMA/PSA/DET/2001/331-36 was passed by District Magisterate, Anantnag (Respondent No. 2) on 18.9.2001 U/s 8 of J&K P. S. Act with a view to prevent him from acting in any manner prejudicial to the security of the state. This detention order was executed on 23.9.2001 and the subject was detained under preventive custody in Kotbhalwal Jail Jammu to serve the detention period. This order and consequent detention is impugned on pleaded grounds falling within the ambit of Article 22 of the Constitution and the provisions of J&K P.S. Act, 1978. State Government through the detaining authority District Magistrate, Anantnag (respondent No. 2) has filed counter. The detention file is also available on record. The Ld. Counsel for petitioner submits that the detenu was not supplied the material referred in the grounds and that the detention order as also the grounds were not supplied to him in Urdu/Kashmiri language which he alone understood. The English version of the order and grounds was not read over and explained to him. Mr. M. M. Khan, AAG submits that the grounds alone have been relied for this detention. Therefore, reference to FIR, Dossier or any other material in the petition is not relevant. Besides the detention order as also the grounds were explained to detenu in Urdu/Kashmiri language which he fully understood. He has even executed receipt to acknowledge the same. Detenu is not prejudiced on this count. In para 5 of the petition, grievance is voiced of non-supply of the FIR, Dossier and other material referred in the grounds. Para 7 of the petition projects the contention of the petitioners counsel of being prejudiced to make representation on account of failure to explain him the grounds and non-supply of translated copy of the grounds in Urdu/Kashmiri language. In the counter it is specifically stated that the detention order was read over and explained to detenu in Urdu/Kashmiri Language which he fully understood and in lieu thereof he has appended his signature on the executed copy of detention order. Besides the grounds of detention were also read over to detenue and its contents were explained to him in the language which he fully understood. Besides the grounds of detention were also read over to detenue and its contents were explained to him in the language which he fully understood. The detenue has been also provided grounds which alone is the basis for the detention and no other record or document has been relied on. The detention file shows receipt of grounds of detention by the detenu. The receipt is counter signed by Dy. Superintendent Central Jail, Kotbalwal. It also acknowledges that the grounds were explained to detenu in English/Urdu/Kashmiri language which he fully understood. Besides overleaf, the detention order, is found endorsement that the detention order has been handed over (after being explained in Urdu/English/Kashmiri language) to detenue while being lodged in Central Jail Jammu. This documents is also attested by Assistant Superintendent Central Jail Kotbalwal and bears even the signatures of Bashir Ahmed ASI DPL, Anantnag who has executed the order and handed over the detenu to Central Jail at Kotbalwal Jammu. This is so stated in para IV & VII under the heading "Facts", of the counter. In like circumstances Division Bench of this Court in Rustam Wani v. State of J&K and Anor., (LPA HC 57 of 2001 decided on 28.8.2001), speaking through Chief Justice H.K.Sema 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 detenu is an illiterate person. In our view, since admittedly, the detenu is an illiterate person, 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." Viewed thus the contention cannot be accepted and is over-ruled. Perusal of grounds of detention reveals the incriminating activities of receiving the training in handling of arms and ammunition : joining `Jesh Mohammad militant outfit; throwing grenades; providing support to anti-national elements in Kokernag area and registration of the criminal case at P/s Kokernag U/s 307 RPC and 7/25 I. A. Act are by their very nature based on some material, documents and report. These allegations by the very nature thereof cannot be bereft of any basis rooted to some material, report or documents. These allegations by the very nature thereof cannot be bereft of any basis rooted to some material, report or documents. The detention file shows that the grounds are based on the detailed report furnished to the detaining authority by Sr. Superintendent of Police District Anantnag which in fact is the basis for the detention in question. Admittedly this report is not at all supplied to respondents. Besides when allegation of attempt to murder and recovery of arms and ammunition in a regular FIR is attributed to detenu, then in the facts and circumstances of this case, at least it is necessary to supply the copies of recovery-memo, statement recorded U/s 161 CrPC, FIR etc. to the detenu. This is so because the FIR cannot be said to have passing reference in the grounds. Instead the dossier/report is the epi-center round which revolves the detention case. The incriminating allegations in the grounds are rooted to the dossier on record. In such circumstances whether it can be said that the respondents have been communicated the grounds of detention, the following observation of the Supreme court in Sophia Gulam Mohd. Bham v. State of Maharashtra and others, is decisive of the matter (AIR 1999 SC 3051) "..... The right to be communicated the grounds of detention flow from Article 22 (5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the detention unless a representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.." In Naseer Ahmed Sheikh v. Addl; Chief Secretary Home and Anor., 1999 SLJ 241 a Division Bench of this Court has spoken as under:- "... The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. Nowhere is it pleaded, muchless shown, that the copy/copies of these reports of the Police on which the detaining authority based its satisfaction to pass the detention order were supplied/ provided to the detenu so as to enable him to make an effective representation against the order." Obviously it cannot be said that the grounds are in fact communicated as mandated by Article 22 (5) and Section 13 of the P.S.Act if so the impugned order is vitiated on this count. Next the petitioners counsel contends that even the order and the grounds bereft of the material as above is not served on the detenu as mandated by section 13 of the P.S.Act. To elaborate, the counsel contends that the grounds are shown to have been served on the detenu on 18.9, 01, when the fact is that the order of detention was executed only on 23.9.01 Section 13 of the J&K P.S.Act provides that the grounds are to be communicated within stipulated period only after the detenue is physically detained. The record has been tailored to show that the detenu has been given grounds when in fact he has not been given ground and thereby he is prejudiced to make the representation against the Government. Mr. M. M. Khan, AAG submits that the record as also the counter of the detaining authority do show that the grounds have been supplied to detenu on 18.9.01, when the order of detention was passed (and approved by Govt. on 25.9.01), no matter execution of the order has taken place and subject taken in preventive custody with lodgment in Kotbalwal Jail at Jammu only on 23.9.01. Even the endorsement on the back side of the detention order shows that the subject was handed over to Superintendent Central Jail at Kotbalwal on 23.9.01, when he had been handed over to one Bashir Ahmed ASI for such lodgement on 22.9.01 by Police Personal in charge of JIC Anantnag on 22.9.01. Detenu has been in punitive detention till 22.9.01 and last was handed over to said Bashir Ahmed for being transferred to lodgement in Central Jail Jammu Kotbhalwal from JIC Anantnag. Detenu has been in punitive detention till 22.9.01 and last was handed over to said Bashir Ahmed for being transferred to lodgement in Central Jail Jammu Kotbhalwal from JIC Anantnag. The combined reading of the petition allegations in para 4 and clause 3 of the counter under head "Facts and perusal of the detention file, fully shows that the detenu after having been detained under impugned order on 23.9.01 was not at all supplied the grounds or any other material. Instead the communication endorsed to detenu (Annexure P-2 shows that the detenu was informed of the detention order and the grounds only on 18.9.01 and that too through Supdt. Jail Kotbalwal Jammu, when in fact in this date he was not lodged in Kotbalwal Jail Jammu and instead continued in Punitive detention with JIC at Anantnag. In such circumstances can it be said that Section 13 of the J&K P.S.Act is complied with Section 13 (1) reads as under:- "Grounds of order of detention to be disclosed to persons affected by the order : -- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be , (but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing , not later than ten days from the date of detention) communicate to him grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government." A bare reading of Section would show that the person once detained pursuant to detention order is to be communicated the grounds on which the order is based as soon as may be, ordinarily within five days and in exceptional circumstances after recording reasons in writing within ten days from the date of detention . The detenu can be said to be afforded an opportunity of making representation against the order to Govt. when the grounds are communicated to him as laid soon after the date of detention. It is not that the grounds are to be communicated within the period reckoned from the date of detention order when the detenu as not in preventive custody (here lodged in the central Jail Kotbalwal). when the grounds are communicated to him as laid soon after the date of detention. It is not that the grounds are to be communicated within the period reckoned from the date of detention order when the detenu as not in preventive custody (here lodged in the central Jail Kotbalwal). If subject is still with the investigating agency for investigating and under interrogation at pre-detention stage, how can it be , as it is made to appear here, the detenu has been served the grounds through Superintendent Central Jail, Kotbalwal. Obviously the order impugned among other things, on plain language of Section 13 of J&K P. S. Act, 1978 is vitiated on this count. In result for the aforesaid view and, reasons the impugned detention order is vitiated and so quashed. Respondents/authority/officer having physical corpus of the Detenue Showkat Ahmed Malik (Age 17 Yrs.) S/o Gh. Rasool Malik R/Zalangam Kokernag Distt; Anantnag. Shall release and set him at liberty from preventive custody, unless required in any other case, offence or matter. Copy of this order shall be given to petitioner free of cost. Registry to take up follows action. Disposed of. The record produced by AAG is returned to him in open court.