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2009 DIGILAW 607 (JK)

Dilawar Magray v. State Of J. &K.

2009-12-04

MOHAMMAD YAQOOB MIR

body2009
1. Detenue, residing in `A Zone Forest area is allegedly dealing in timber smuggling. With the help of associates in the clandestine manner is felling green trees from the forest, after dressing them into Phadas (Sleepers) transport it to unknown places wherefrom manage its dispatch to different quarters for sale. In the process, used to succeed in giving slip to the law enforcing agencies, extensive damage is caused to the forests. 2. Grounds, of detention would reveal that the detenue namely Dilawar Magray, being a habitual, professional and notorious timber smuggler, often indulges in the illicit trade of timber, is said to have caused much damage to the forests. It is also mentioned that three damage cases have been registered against the detenue on the report of Divisional Forest Officer, Forest Division Shopian on 18.07.2008, 31.07.2008 and 14.10.2008. Detenue was ordered to be detained under the provisions of Public Safety Act, pursuant to detention order No. 53/DMS/PSA/08 dated 26.11.2008. 3. The first contention raised is that the detenue is allegedly involved in number of smuggling activities from July 2008 to October, 2008 but has never been apprehended nor the respondents have made any effort to get the person arrested and booked in any criminal case, more particularly when it is alleged in the grounds of detention that the detenue alongwith his associates used to pelt stones on law enforcing agency, same has not been taken note of which in turn shows non-application of mind, which renders the order of detention as illegal. 4. Detaining authority has not even bothered to mention as to what has happened to the cases as shown to have been registered against the detenue from July, 2008 to October 2008. It is not mentioned as to whether bail has been applied for or granted. This clearly shows non-application of mind on the part of the detaining authority. 5. The order of detention is dated 16.11.2008 but has been executed on 07.04.2009. No explanation is tendered as to why order was not executed till 07.04.2009. Preventive detention is not punitive but is aimed at deterring a person from doing a particular Act. From 26.11.2008 till 07.04.2009 nothing attributable to the detenue is forthcoming relatable to damage to the forests, which in turn would show that preventive order was not required, same position has been lost sight of. 6. Preventive detention is not punitive but is aimed at deterring a person from doing a particular Act. From 26.11.2008 till 07.04.2009 nothing attributable to the detenue is forthcoming relatable to damage to the forests, which in turn would show that preventive order was not required, same position has been lost sight of. 6. The next contention as raised is that the detenue is an illiterate person, he has not been furnished the material forming basis of the detention order. Elaborating this contention, it is contended that the detenue being an illiterate should have been provided the copy of the material in the language he could understand, further more, translated copy should have been provided to him. The submission is forceful when the detenue, admittedly, is an illiterate person, he should have been provided the material in a translated form so as to enable him to make effective and purposeful representation as permissible under Section 13 of Public Safety Act. Non supply thereof renders the detention order illegal being violative of the rights guaranteed under Article 22 (5) of Constitution of India. In this connection, it is apt to quote the observation made by Apex Court in the judgment (Powanammal v. State of T. N and another) reported in 1999 (2) SCC, Page 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." 7. The detaining authority has to bear in mind that detaining a person means to deprive a person of his liberty. Liberty of an individual can be curtailed only when there are grounds based on proper material and on proper subjective satisfaction, in absence, it may amount to trampling with the personal liberty which in turn involves violation of human right guaranteed to a person under the Constitution. Right to liberty can not be trampled unless there are reasonable grounds for so doing. 8. Right to liberty can not be trampled unless there are reasonable grounds for so doing. 8. It is a matter of concern that the forest wealth is being damaged, any person whosoever dares to cause damage to the forest wealth has to be dealt with iron hand. There can be no leniency but for enforcing the preventive measures so as to deter a person from causing any damage to the forest wealth, the law has to be followed in strict sense so that there is no chance of unreasonable trampling with guaranteed human rights. 9. In the backdrop of the reasons stated above and the law referred, the detention order under challenge is unsustainable, therefore, detention order bearing No. 53/DMS/PSA/08 dated 26.11.2008 is quashed. Detenue namely Dilawar Magray S/o Rasool Magray R/o Chaki-Keller, Tehsil and District Shopian, is ordered to be released forthwith provided he is not required in connection with any other case. Detention record be returned to the appearing counsel for respondents. 10. The petition accordingly disposed of.