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2008 DIGILAW 465 (JK)

Adil Ayoub Bhat v. State Of J. &K.

2008-12-02

MOHAMMAD YAQOOB MIR

body2008
1. The detenue namely Adil Ayoub Bhat S/o Mohammad Ayoub Bhat R/o Bangerpora Teilbal, Srinagar has been arrested by the police on 09.04.2008, in connection with a criminal case registered against him under FIR No. 24/2008 with Police Station Nigeen for commission of offences punishable under Section 302, 307 RPC, 7/25 of Indian Arms Act and 19 Unlawful Activities (Prevention) Act. While in custody detenue was ordered to be detained under the provisions of Public Safety Act pursuant to detention order No. DMS/PSA/04/ 2008 dated 30.04.2008. 2. Dissatisfied with the order of detention, brother of the detenue has filed this petition seeking quashment of the same. 3. The first contention raised is that the detenue who was in custody has not applied for bail neither he had been admitted to bail, therefore, before passing order of detention compelling reasons were to be recorded by the detaining authority. No compelling reason has been recorded to say that the detenue is likely to secure bail from the competent court and get recycled in activities prejudicial to the integrity/security of the State, how has been inferred is not manifest. 4. The second contention of the learned counsel is that the copy of FIR, order of detention as well as other material forming the basis or passing the detention order have not been supplied to the detenue so as to enable him to make an effectively and purposeful representation against his detention which right is guaranteed under Article 22(5) of the Constitution of India. In this connection it would be apt to quote from an Apex Court Judgment reported as AIR 1999 SC 3051 covering this aspect: "......... 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 detenue 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 ........." 5. Non-supply of the material as well as grounds of detention is violative of the rights guaranteed under Article 22 (5) of Constitution of India. Non-supply of the material as well as grounds of detention is violative of the rights guaranteed under Article 22 (5) of Constitution of India. From the perusal of file, it nowhere emerges that the material forming basis for the detention has been furnished to the detenue. Further more as to whether the grounds of the detention have been read over and explained to the detenue is also questioned. 6. Despite numerous opportunities, respondents have failed to file counter affidavit and right to file the same stands closed vide order dated 04.11.2008. Detention record too has not been made available by the respondents, leaving the court with no other option except to consider the detenues petition on the basis of what has been urged by the counsel in support thereof. 7. It is quite apt to quote from the Apex Court Judgment reported as "Raziya vs. Union of India AIR 1980 Page 1751 as to what has been laid down: "The service of the grounds of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenue, unless the contents of the grounds are fully explained and translated to the detenue, it will tantamount to not serving the ground of detention to the detenue and would thus vitiate the detention ex-facie. In cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenue, it must see to it that the ground are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language which he understands. A bare statement at the stage when Habeas Corpus petition is filed in the court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation." 8. In the totality of the facts and circumstances what surfaces is that the order of detention has been passed absolutely in violation of rights guaranteed under Article 22(5) of Constitution of India. Thus order of detention is not sustainable. 9. Hence the detention order No. DMS/PSA/04/2008 dated 30.04.2008, is quashed. In the totality of the facts and circumstances what surfaces is that the order of detention has been passed absolutely in violation of rights guaranteed under Article 22(5) of Constitution of India. Thus order of detention is not sustainable. 9. Hence the detention order No. DMS/PSA/04/2008 dated 30.04.2008, is quashed. Detenue namely Adil Ayoub Bhat S/o Mohammad Ayoub Bhat R/o Bangerpora Teilbal, is ordered to be released forthwith provided he is not required in connection with any other case. 10. The petition accordingly disposed of.