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2005 DIGILAW 132 (JK)

Gh. Mohd. Lone v. State

2005-05-09

MANSOOR AHMAD MIR

body2005
1. Subject Ghulam Mohammad Lone son of Abdul Ganai Lone resident of Shunglipora, Noor Bagh, Srinagar through his father seeks to quash the detention order No. DMS/PSA/30 dated 08.07.2003 passed by the District Magistrate, Srinagar in terms of Section 8 of Jammu &Kashmir Public Safety Act, 1978, on the grounds taken in the memo of petition. Respondents have filed reply. 2. Heard. Considered. It appears that detention order has been executed on 23rd day of July 2003, while as the same has been passed on 8th day of July 2003 and stands approved by the Government on 18th April, 2003. It is profitable to reproduce para-4 of the grounds of detention herein; - Besides the above mentioned subversive activities you are responsible for organizing and activating the caders of HM outfit under the directions and command of Ibrahim Dar, Bn Commander of HM outfit. Your activities came to an end when you were arrested on 7-3-2003 by 61 BN BSF from your residence one AK-47 rifle, one AK magazine and 25 rounds of ammunition were recovered from your possession. In this connection, a case FIR No.40/03 u/s 7/25 I.A. Act stands registered in the Police Station, Safakadal against you.� 3. The grounds of detention disclose that activities which were prejudicial to the security of the State had come to an end on 7th March 2003 then what was the reason for passing the detention order on 8th July 2003, when the detenue was in custody at that time in FIR 40/03 u/s 7/25 I.A. Act P/S Safakadal. This suggests non-application of mind and detention order needs to be quashed. 4. In grounds of detention it has been averred that upon perusal of the record provided by Superintendent of Police, Srinagar the detaining authority has derived satisfaction. There is nothing on the file and record which suggests that said material was supplied to the detenue, while as the supplying if documents to the detenue is must. 5. In grounds of detention, a mention of FIR Nos. 161/02 u/s 307 RPC and 3 PSS Safakadal, 186/02 u/s 307 RPC 3 PSS Act P/S Safakadal, 188/02 u/s 307 RPC 7/27 I.A. Act P/S Safakadal, 137/02 u/s 307 RPC and 7/27 I.A. Act and 40/03 under section 7/25 of I.A. Act P/S Safakadal, has been made. The copies of FIR, seizure memo have not been supplied to the detenue. 161/02 u/s 307 RPC and 3 PSS Safakadal, 186/02 u/s 307 RPC 3 PSS Act P/S Safakadal, 188/02 u/s 307 RPC 7/27 I.A. Act P/S Safakadal, 137/02 u/s 307 RPC and 7/27 I.A. Act and 40/03 under section 7/25 of I.A. Act P/S Safakadal, has been made. The copies of FIR, seizure memo have not been supplied to the detenue. There is nothing on the file suggesting the fact that such material was supplied to the detenue in order to make an effective representation. Thus on this count, the detention order is bad. 6. In Sophia Ghulam Mohammad Bham vs. State of Maharashtra and Ors. (AIR 1999 SC. 3051), the Apex Court has 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 be 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¦� 7. Mr. Mehraj argued that the grounds of detention and warrant of detention have not been read over to the detenue in the language which he can understand. There is nothing on the file or on the record that in which language the contents of documents were read over to the detenue. 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 detenu in the language which the detenue can understand. Even the respondents have not filed the affidavit of the serving officer. 8. While going through the grounds of detention the detenue was in custody from 7th March, 2003 till execution of the detention order. The detaining authority has not made any whisper in the grounds of detention that whether the detenue was enlarged on bail or whether he has moved an application for grant of bail and whether there was likelihood of his being released on bail. Thus on this ground also the detention order needs to be quashed. 9. The detaining authority has not made any whisper in the grounds of detention that whether the detenue was enlarged on bail or whether he has moved an application for grant of bail and whether there was likelihood of his being released on bail. Thus on this ground also the detention order needs to be quashed. 9. The detaining authority has not spelled out the compelling reasons for detaining the detenue in preventive detention despite of the fact that detenue was in custody. 10. 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�. 11. In another case Amrit Lal and others v/s Union of India reported in (2001) 1 SCC 341 their Lordships of the Supreme Court observed; - 1. 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.� 12. While applying the test to the instant case the detention order needs to be quashed. Having glance of the above discussion, it is hereby held that detention order needs to be quashed. Accordingly, the petition is allowed. The detention order is herby quashed with the command to the State to release the detenue forthwith provided, he is not required in any other case. Having glance of the above discussion, it is hereby held that detention order needs to be quashed. Accordingly, the petition is allowed. The detention order is herby 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 back.