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2005 DIGILAW 121 (JK)

Ab. Aziz Shah v. State

2005-04-28

MANSOOR AHMAD MIR

body2005
1. Subject Abdul Aziz Shah son of Abdul Khaliq Shah resident of Muqam Shah Wall. Drugmulla Kupwara through his cousin Abdul Ahad Shah seeks to quash the detention DMS/ PSA/10/04 dated 12.07.2004 passed by respondent No.2 District Magistrate, Srinagar in exercise of powers in terms of Section 8 of Jammu & Kashmir Public Safety Act, 1978, whereby the detenue stands detained in detention for a period of 24 months and lodged in Kotebhalwal Jail, Jammu. The impugned detention order has been assailed on various grounds taken in the memo of petition. 2. The respondents have filed reply counter affidavit and have resisted the petition. Heard. 3. Mr. Qayoom argued that petitioner had made representation and same has not been considered by the respondents. The copy of the representation is annexure-C to the petition. The respondents have not denied the para-5 and para 6(d) of the petition. Mr. Qayoom drew the attention of this court to Section 15 of Jammu and Kashmir Public Safety Act and also referred a judgment of the Apex Court reported in AIR 1996 SC2998. 4. Mr. Qayoom further argued that the petitioner was already in custody at the time of passing of detention order in FIR No. l 14/2003, so the detention order is bad. The petitioner has not been admitted to bail so the respondent no.2 should have given compelling reasons in the order of detention. No such compelling reasons have been given in the detention order, grounds of detention or in the counter affidavit. Further argued that the material, reference of which is made in the grounds of detention, has not been furnished to the detenue. 5. Mr. Hussain while rebutting the arguments argued that the detenue has not made any representation. The competent authority has heard the detenue. The detenue has been provided with the grounds of detention, which are only basis for detaining the petitioner. The detaining authority has spelled out compelling reasons. Considered. 6. Section 15 of Jammu & Kashmir Public Safety Act read as under;- "15. The competent authority has heard the detenue. The detenue has been provided with the grounds of detention, which are only basis for detaining the petitioner. The detaining authority has spelled out compelling reasons. Considered. 6. Section 15 of Jammu & Kashmir Public Safety Act read as under;- "15. Reference to Advisory Board.-In every case where a detention order has been made under this Act, the Government shall, within four weeks [from the date of detention under the order] place before the Advisory Board constituted by it under section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also report by such officer under sub-section (4) of section 9. This provision of law mandates that the Government shall place before the Advisory Board the grounds of detention and the representation. 7. The respondents have taken stand that detenue has not made a representation, while as the copy of the representation is on the file and the petitioner is on affidavit. The respondents should have denied this fact by filing an affidavit. 8. The Apex Court has observed in K. D. Shaikh v. District Magistrate, Ahmedabad reported in AIR 1996 SC 2998 as under:- " 18. Turning now to the main question relating to the early disposal of the representation, we may immediately observe that this Court, in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the Court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention; and in that situation, continued detention would become bad. This has been the consistent view of this Court all along from its decision in Sk.Abdul Karim v. State of West Bengal, (1969) 1 SCC 433: (AIR 1969 SC 1028); In re: Durga Show, (1970)3 SCC 696: Jaynarayan Sukul v. State of West Bengal (1970)1 SCC 219: (AIR 1970 SC 675); Shaik Ham} v. State of West Bengal, (1974)1 SCC 637: (AIR 1974 SC 679); Raisuddin @ Babu Tamchi v. State of U.P., (1981)4 SCC 537: (AIR 1984 SC 46); Frances Coralie Mullin v. W.C.Khambra (1980)2 SCC 275: (AIR 1980SC849) Mohinuddin alias Main Master v. District Magistrate, Beed, (19.87)4 SCC 58: (AIR 1987 SC 1977); Rama Dhondu Borade v. V. K. Saraf, Commr Of Police, (1989)3 SCC 173: (AIR 1989 SC 1861); Aslam AhmedZahireAkmd Shaik v. Union of India, (1989)3 SCC 277: (AIR 1989 SC 1403); Mahesh Kumar Chauhan alias Banti v. Union of India, (1990)3 SCC 148: (AIR 19% SC 1455), right upto its reiteration In Gazi Khan alias Chotia v. State of Rajas than, (1990)3 SCC 459: (AIR 1990SC 1361). 9. The Apex Court has laid down that representation should be disposed of immediately and if representation is not considered and disposed of immediately^ the detention order becomes bad. 10. It is admitted that detenue was in custody in FIR No. 114/2003 P/S Kothibagh. The detaining authority has not spelled out compelling reasons for detaining the petitioner in detention under Public Safety Act. Even the detaining authority has not made a whisper in the grounds detention that detenue has applied for bail and whether bail has been granted. The Apex Court in a judgment reported in AIR 1995 SCW 1841 has held as under;- " When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority awareness of the fact that the detenue was in judicial custody at the time of making the order of detention the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averments made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder cannot be said to be proper and justified�. In another case Amrita LaI and others v/ s Union of India reported in (2001)1 SCC341 their Lordships of the Supreme Court observed;- 6. The requirement as noticed above in Binod Singh case that there is likelihood of the petitioners being released on bail however is not available in the reasoning available is the likelihood of his moving application for bail which is different from likelihood to be released on bail. This reasoning, in our view, is not sufficient compliance with the requirements as laid down. " While applying the test to the instant case the detention order needs to be quashed. The material, reference of which is made in the grounds of detention and detention order have not been made available to-the petitioner. The non-supply of the material vitiates-the detention orders. The Apex Court in Sophia Ghulam Mohammad Bham vs. State of Maharashtra and Ors. (AIR 1999 SC..3051), observed as under; - "......... The right to be communicated the grounds of detention flows 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 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 detenue 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......... " 11. It appears that the contents of warrant and grounds of detention have been read over to detenue in Kashmir! and Urdu Language. It is mandatory on the part of the respondents to prima facie prove that the grounds of detention, material and contents of warrants were read over to the detenue in the language, which the detenue can understand. Even the respondents have not filed the affidavit of the serving officer. This view is fortified by the Apex Court judgment reported 2005 (1) JKJ 7(SC), State Legal Aid Committee, J&K V. State of J&K and Ors. Thus the mandatory provision of law has not been complied with. Even the respondents have not filed the affidavit of the serving officer. This view is fortified by the Apex Court judgment reported 2005 (1) JKJ 7(SC), State Legal Aid Committee, J&K V. State of J&K and Ors. Thus the mandatory provision of law has not been complied with. On this count also, the detention order needs to be quashed. Having glance of the aforesaid discussion, it is hereby held that detention order needs to be quashed. Accordingly, the petition is allowed. The detention order is hereby quashed with the command to the State to release the detenue forthwith provided, he is not required in any other case. Record of the case be returned to Mr. N. H. Shah.