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2008 DIGILAW 430 (JK)

Mudasir Yousuf Bhat v. State

2008-11-12

MOHAMMAD YAQOOB MIR

body2008
1. Detention order bearing No. 39/DMP/PSA/08 dated 29.3.2008 is questioned being against law. Detenu has been shown involved in connection with case FIR No. 47/08 for commission of offence punishable under Section 7/25 Arms Act. 2. Though detenu had been ordered to be released on bail instead has been detained under Public Safety Act pursuant to detention order under challenge. 3. Appearing counsel for the petitioner contended that the petitioner had been admitted to bail which fact has not been made mention of in the grounds of detention though reference to FIR 47/08 has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Liberty of a person is to be respected as is guaranteed, the same flows from the constitution itself. It is true that if a person is alleged to be involved in anti-national activities, he has to be deterred with iron hand but for deterrence provisions of Public Safety Act are to be strictly adhered to otherwise safeguards both technical and substantial provided for by the Act will be rendered illusory. Non-mention of the grant of bail is serious lapse which in turn gives rise to the interference that there is non application of mind. 4. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote para 8 of the Judgment reported in AIR 1987 SC page 137 quoted herein below:- "We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner he released forthwith." 5. Next it is contended that grounds of detention were not read over to the detenu neither translated script has been given to the detenu which is a serious lapse. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner he released forthwith." 5. Next it is contended that grounds of detention were not read over to the detenu neither translated script has been given to the detenu which is a serious lapse. Furthermore, the material more particularly copy of the Dossier and other incidents incorporated in the grounds which have constrained the detaining authority to pass orders of detention have not been furnished to the detenu so as to make purposeful representation and to explain his innocence. 6. Contention is forceful. No doubt, grounds of detention as per record are shown to have been read over to the detenu in Kashmiri language by one Head Constable, Mohd. Akram but no affidavit on behalf of Mohd. Akram is placed on record. That apart material forming basis of detention is no where shown to have been furnished to the detenu which amounts to infringement of rights guaranteed under Article 22(5) of Constitution of India. This position of law laid down by the Apex Court in the Judgment reported in 1999(2) SCC, page 413 which is quoted below:- "The amplitude of the safeguard embodied in Article 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 rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order." For the reasons and the law stated above, order of detention bearing No. 39/DMP/ PSA/08 dated 29.3.2008 is held to be unsustainable, so is quashed, Detenu namely Mudasir Yousuf Bhat S/o Mohammad Yousuf Bhat R/o Batengoo Tehsil Sopore District Baramulla, shall be released forthwith, unless required in any other case. Petition is disposed of accordingly. Detention record produced be returned to the appearing counsel for the respondents.