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2009 DIGILAW 585 (JK)

Mohd. Syed Peer v. State

2009-11-23

MOHAMMAD YAQOOB MIR

body2009
1. Detenue, namely, Mohammad Syed Peer, detained pursuant to detention order No.09/DMB/PSA/09 dated 20.7.2009 passed by District Magistrate, Baramulla, has been lodged in District Jail, Udhampur, 2. The first contention raised regarding illegality of the detention order is that the Detaining Authority has not applied the mind while passing the said order. 3. In this context essentially it has been highlighted that in the grounds of detention forming base for the order of detention it has been alleged that upon motivation of HM militants detenue went to POK in the month of March, 1999 for obtaining training in handling of arms and ammunition, after receiving training has reportedly infiltrated back into the Valley in the year 1994. 4. When a person had gone to POK in the year 1999, how he could be said to have returned back in the year 1994. At the first instance it appeared to be a clerical error but in the counter affidavit as has been filed by the Detaining Authority i.e. District Magistrate, Baramulla, it is again repeated therein that the detenue had gone to POK in the month of March, 1999 and had returned back to Valley in the year 1994. Detention record as is produced by the learned counsel for the respondents carries the same position which has neither been noticed nor explained. 5. Not only this another surprising circumstance appears from the perusal of the dossier prepared by SSP, Baramulla dated 6.6.2009 available on the record, wherein it is again strangely recorded that the detenue went to POK in the month of March, 1991 and after obtaining the requisite training reportedly in the month of August, 1991 infiltrated back in the Valley and in the year 1994 was arrested by the security forces. 6. There is complete distortion regarding the fact of going of detenue to POK and infiltrating back into Valley. Dossier is prepared by SSP, Baramulla, grounds of detention prepared by District Magistrate, Baramulla and counter affidavit filed by District Magistrate, Baramulla clearly indicate that the order of detention has been passed in a casual fashion. Non application of mind is totally apparent which in turn is enough for quashing the order of detention. 7. Dossier is prepared by SSP, Baramulla, grounds of detention prepared by District Magistrate, Baramulla and counter affidavit filed by District Magistrate, Baramulla clearly indicate that the order of detention has been passed in a casual fashion. Non application of mind is totally apparent which in turn is enough for quashing the order of detention. 7. One more fact which appears from the perusal of grounds of detention also shows non application of mind i.e. the detenue is shown to have been arrested in connection with case FIR No. 186/2009 P/S Sopore for the commission of offences punishable under Section 212 RPC and 13 ULA Act. In the grounds of detention it is nowhere mentioned as to whether detenue had applied for bail or whether he was released on bail. In case he would not have been released on bail, then compelling reasons were required to be recorded for curtailing the liberty of the detenue. 8. It is also quite strange to note that according to the dossier prepared by SSP, Baramulla, the detenue had returned back from POK after obtaining training in the month of August, 1991, then in the same year has been arrested by the security forces but it is not shown in which connection he was arrested and as to whether any case was registered against him. It is also not clarified as to where the detenue was till 2009 as the case against him was registered as FIR No. 186/2009 and shown arrested on 22.5.2009. 9. All these facts/grounds as figure in the dossier prepared by the SSP, Baramulla available on the detention record as produced have not been properly appreciated by the Detaining Authority. Instead in an arbitrary manner without applying the mind order of detention has been passed. Therefore, order of detention is bad in the eye of law. 10. Next it is contended that neither the copy of dossier forming base of the grounds of detention nor the copies of statements recorded under Section 161 Cr.P.C in connection with FIR No. 186/2009 have been furnished to the detenue, which in turn disabled the detenue from making an effective and purposeful representation against his detention. 11. 10. Next it is contended that neither the copy of dossier forming base of the grounds of detention nor the copies of statements recorded under Section 161 Cr.P.C in connection with FIR No. 186/2009 have been furnished to the detenue, which in turn disabled the detenue from making an effective and purposeful representation against his detention. 11. Though the detention record would reveal that the grounds of detention were read over and explained to the detenue but the person i.e. Mohammad Ashraf SI who is shown to have read over grounds of detention to the detenue, has not filed any affidavit in `support of such position. It shall be apt to quote the relevant para of the judgment reported in 1999(2) SCC 413 : "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 detenue but also to supplying their translation in script or language which is understandable to the detenue. 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. The detention order suffers from non-application of mind and has been passed in violation of the rights guaranteed to the detenue, therefore, being unsustainable is quashed. Detenue, namely, Mohammad Syed Peer S/O Late Ghulam Nabi Peer R/O Badambagh Tehsil Sopore be released forthwith provided he is not required in connection with any other detention order or any other case. Petition disposed of as above. Detention record be returned to the learned counsel for the respondents.