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2005 DIGILAW 87 (JK)

Gh. Mohd. Mir v. State

2005-03-29

MANSOOR AHMAD MIR

body2005
1. Subject Mohammad Qasim Mir stands detained in terms of detention Order bearing No. DMB/PSA/12 of 2001 dated 29.9.2001 passed by respondent No. 2, District Magistrate, Budgam for a period of 24 months. By the medium of this petition, the said detention order has been challenged on the grounds taken in the memo of petition which are summarized as under; - 2. That the detention order stands passed on 29.9.2001, but executed on 31.07.2004, thus delay has crept in. The delay in execution of the detention order has rendered its purpose irrelevant. The copies of detention order and grounds of detention were not provided to the detenue. The translated copies in the language of detenue were not provided to the detenue in order to enable the detenue to make an effective representation. The detenue was in custody at the time of passing of the detention order. The detention order suffers from non-application of mind. 3. The respondents have resisted the petition in terms of the reply affidavit on the grounds which can be summarized as under:- 4. That the activities of the detenue are prejudicial to the security of the State which necessitated detention of the detenue under Public Safety Act. The detenue was provided with the copy of grounds of detention. The contents of the warrant and grounds of the detention order were read over and explained to the detenue in his own language. The detenue has not availed the right to file representation against the detention order. 5. Heard. Perused. Considered. In reply to para `c and `g of the petition, the counter reads as under; - (c) In reply to ground it is submitted that the detenu has been supplied with the material in the shape of grounds which form the basis for his detention under PSA. The detenu has understood the contents of warrant as well as grounds in the language in which same have been read over and explained to him. The detenu having failed to file representation against the detention order, is as such estopped under law to challenge his detention Ground (c) as such is denied. (g) Ground (g) is denied. Custody of the detenu in a criminal case cannot provide any impediment to detain him under PSA once his activities are prejudicial to the security of the State. 6. The contrary stands have been taken in these paras. (g) Ground (g) is denied. Custody of the detenu in a criminal case cannot provide any impediment to detain him under PSA once his activities are prejudicial to the security of the State. 6. The contrary stands have been taken in these paras. In para-c the respondents have pleaded that detenu was not in custody, while as in para-g the said fact stands admitted. The detention order dated 29.9.2001 has been executed on 31st July, 2004. The respondents have not explained in the reply why the order has been executed after two years delay. In AIR 1999 SC 2622, Manju Ramesh Nahar v. Union of India and others, the Apex Court has held as under; - "8. This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the "satisfaction" of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent." In K.P.M. Basheer v. State of Karnataka and Anr. (AIR 1992 SC 1353) it is observed:- "... Under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link between the grounds and purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him." This court in a judgment Naseer Ahmad Sheikh v. Addl. Chief Secretary Home & anr, reported in SLJ 1999 page 241 has held as under:- "13. We fail to comprehend as to how could in view of this legal requirement be it held that the procedure adopted was not violative of the mandate of section 13. The order having been passed in respect of the detenue who was already in custody on 9-6-1997, the grounds of detention ought to have been communicated at the latest by 19-6-1997. The fact of the matter is that the grounds of detention were served on the detenue on 30-6-1997. There has thus been the clear and utter non-observance of the mandate of section 13 of the Act. This breach of the statutory requirement is itself sufficient to render the detention order invalid." 7. The fact of the matter is that the grounds of detention were served on the detenue on 30-6-1997. There has thus been the clear and utter non-observance of the mandate of section 13 of the Act. This breach of the statutory requirement is itself sufficient to render the detention order invalid." 7. Thus applying the test to the instant case, the delay caused in execution of detention order has rendered the purpose of detention order irrelevant and thus needs to be quashed. 8. The respondents have not explained whether the grounds mentioned in the detention order were existing at the time of execution of the said order i.e., after lapse of two years. Even a whisper regarding the said fact has not been made in the counter affidavit. Thus on this count also the detention order needs to be quashed. 9. The respondents have taken a plea that the grounds were read over to the detenue in Urdu and Kashmiri language. But in which language the documents have been read over to the detenue is not given in the reply whether in Urdu or in Kashmiri language. And whether he was understanding the Urdu language or not? It is not mentioned in the counter affidavit that who, executed the order and, explained to the detenue and in which manner the executing officer has served the detention order. Thus on this count also the detention order needs to be quashed. 10. While going through the detention order, grounds of detention and approval of the detention order, it is crystal clear that the detenue was in custody at the time of passing of detention order. In the given circumstances the detaining authority was under legal obligation to assign reasons that what were the compelling reasons for passing the detention order. Not to speak of spelling out compelling reasons even a whisper has not been made in the detention order about the said fact. Thus the order suffers from non-application of mind. 11. The Apex Court in "Powanamnul v. State of Tamil Nadu and Ors" 1999(2) SCC 413 held as under:- "The amplitude of the safeguard embodied in Art. 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu. Failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order." 12. Again in Sophia Ghulam Mohammad Bham v. State of Maharashtra and Ors. (AIR 1999 SC 3051), the Apex Court reiterated and reads 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." 13. In the given circumstances, the petition succeeds. The detention order is hereby quashed with the command to the State to release the detenu forth with provided, he is not required in any other case.