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2004 DIGILAW 121 (JK)

Bashir Ahmad Sofi v. State

2004-04-27

R.C.GANDHI

body2004
Detenu Bashir Ahmad Soft has presented this petition through his brother Abdul Majid Sofi, seeking to quash detention order No. DMD/PSA/93 dated 4-1-2003 passed by District Magistrate, Srinagar in exercise of his power under S. 8 of the J. & K. Public Safety Act, 1978 (hereinafter to be referred to as "the Act"). The detenu has been directed to be detained for a period of two years. The detenu has challenged the detention order on various grounds including that he was detained by the respondents in FIR No. 73/2002 registered with P/S Khanyar, Srinagar and put in wrongful confinement. The respondents could not collect any evidence of his involvement in commission of the offence. By the abuse of the power respondent No. 2 passed the order of preventive detention of the detenu. The grounds of detention, dossier and the other relevant documents relied upon by the respondents have not been supplied to the detenu in absence of which the detenu is not in a position to make an effective representation in terms of S. 13 of the Act. No recovery was made from the detenu and his alleged involvement for distribution of the money to the families of the deceased militants is incorrect. Respondents have filed reply controverting the averments of the petition. It is stated that the detenu was taken into custody on 29-6-2002 in FIR No. 73/2002 of P/S Khanyar. His detention was necessary keeping in view his activities which were found prejudicial to the security of the State. The detention order was issued on 4-1-2003 and approved on 15-1-2003 within the statutory period. It was executed on 11-1-2003 and confirmed by the Government on 12-3-2003. The Board constituted under S. 14 of the Act after hearing the detenu has opined the continued detention of the detenu for a period of twenty four months. Heard learned counsel for the parties and perused the record. Learned counsel for the petitioner has submitted that the order of detention was passed by the District Magistrate, before recording his satisfaction on the basis of the record received from the SSP as is mentioned in the detention order. Therefore, the detention order deserves to be quashed. Heard learned counsel for the parties and perused the record. Learned counsel for the petitioner has submitted that the order of detention was passed by the District Magistrate, before recording his satisfaction on the basis of the record received from the SSP as is mentioned in the detention order. Therefore, the detention order deserves to be quashed. Another submission made for quashing the detention order is that the grounds of detention have not been explained to the detenu as required by law in terms of S. 13 of the Act to the detenu which has deprived the detenu to make an effective representation to the Government. The detention order also suffers on this count. I have perused the record and the counter-affidavit filed by the respondents. The respondents in the counter-affidavit have stated that grounds of detention were explained to the detenu in the language which he understood and in lieu thereof he has executed a receipt which is on the file. I have examined the text of the receipt also which reads : "Receipt of grounds of detention. Received the grounds of detention from District Magistrate, Srinagar vide his order No. DMS/PSA/93 dated 4-1-2003 consisting of two leaves through Dy. Supdtt. Central Jail, Jammu Kotchalwal today on 17-1-2003 along with letter No. DMS/Misc. 56-71 dated 4-1-2003. The contents of the grounds of detention were read over and explained to me in English/Urdu/Kashmiri language which I understood fully. I have also been informed that I can make the representation to the Govt. against my detention order if I so desire." It indicates that the grounds of detention have been explained to the detenu in English/Urdu/Kashmiri language. Mr. Molvi Aijaz, learned counsel, has submitted that the detenu does not know English. The respondents have prepared a stereo-typed form and almost is placed with record of the each detenu indicating the grounds of detention read over and explained in English/Urdu/Kashmiri languages. Respondents must be specific in their reply in which language the grounds of detention have been explained and read over to the detenu. The respondents have prepared a stereo-typed form and almost is placed with record of the each detenu indicating the grounds of detention read over and explained in English/Urdu/Kashmiri languages. Respondents must be specific in their reply in which language the grounds of detention have been explained and read over to the detenu. The purpose of explaining the grounds of detention is to equip the detenu with information on the basis of which satisfaction has been derived by the detaining authority for directing preventive detention of the detenu and the representation thereto can be made by the detenu to make out that the preventive detention based on the grounds of detention is uncalled for. It is not expected from the respondents that while dealing with the case of the detenu, they deal so leisurely. The respondents must state on affidavit that officer who served it and his reply should also be filed so that the officer may state in which language the grounds were explained and understood by the detenu. Mr. Molvi Aijaz, learned counsel has also drawn the attention of the Court on the language of the detention order and argued that the detention order has been passed by the detaining authority on the basis of the record received from the SSP, Srinagar but the grounds of detention indicate that before framing the grounds of detention by the detaining authority, the detention order stood issued. He has drawn this argument from the language of the grounds of detention which reads us : "It is clear that your activities are highly prejudicial to the security of the State and your remaining at large will be a threat to the security of the State. Under each compelling circumstances, it has become imperative to detained under the provisions of Public Safety Act, 1978 for which a separate order has been passed." The detaining authority has to derive the satisfaction from the grounds of detention first and then to pass an order of preventive detention. In this case material has been placed by the SSP, Srinagar before the detention order and relying upon the material the detention order has been issued. In this case material has been placed by the SSP, Srinagar before the detention order and relying upon the material the detention order has been issued. The detaining authority has the power under S. 8 of the Act to direct the preventive detention provided he is satisfied that the detenu is required to be detained, having found acting in the manner prejudicial to the situations contained in S. 8 of the Act. The detention order has to be passed only after perusal of the grounds of detention, but in this case it appears that the detention order has been issued before framing of the grounds of detention which is evident from the language of the grounds of detention. Learned counsel for the respondent while confronted with the situation has not been able to counter the plea of the learned counsel for the petitioner. The valid detention order which can be sustained is one which has been passed by the detaining authority after examining the grounds of detention, and therefrom deriving the subjective satisfaction, which is not the case coming out herein from the reply and pleadings of the respondents. For the foregoing reasons, the detention order impugned in this case cannot be maintained and is quashed. The detenu shall be released forthwith from the preventive detention provided he is not required in any other case. Order accordingly.