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2009 DIGILAW 609 (JK)

Mohd. Ashraf Khan v. State

2009-12-04

MOHAMMAD YAQOOB MIR

body2009
1. Activities of the detenu as detailed in the grounds of detention to the satisfaction of detaining authority were found to be prejudicial to the security of the State. Resultantly, vide order No. 05-DMK/PSA of 2009 dated 29.06.2009, detenu has been ordered to be detained Aggrieved thereof, instant petition has been filed. 2. Grounds of detention would reveal that the detenu had read upto 5th standard but due to poverty gave up the studies and started grazing the cattle. While attaining the age of 15 years is alleged to have ex-filtrated to POK in the year 2003 for acquiring illegal arms and ammunition training. He is stated to have infiltrated into the Valley after having escaped from the training camp in the year 2004 but had infiltrated without arms and ammunition. In the month of January, 2009 is alleged to have developed contacts with one Yunis Checkbary and is alleged to have arranged food and fruits for the militants. The detenu was apprehended on 01.06.2009 by 18th Bn. of Rashtriya Rifles and from his custody one pistol, one magazine and four pistol rounds were recovered, as a result, case under FIR No. 16/2009 for commission of offence punishable under Section 7/25 of Arms Act was registered against him in Police Station Lalpora. 3. The next contention of the learned counsel is that the detenu was already in custody in connection with case FIR no. 16/2009 in Police Station Lalpora. Detenu had neither applied for bail nor was otherwise released on bail, therefore, passing of detention order was permissible only when there would have been some compelling reasons for doing so. No such reasons have been given, when it is so, order of detention is bad. Further more, copy of FIR, order of detention as well as other material forming the basis for passing the detention order have not been supplied to the detenue so as to enable him to make an effective 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 the Hon’ble Apex Court Judgment (Sophia Gulam Mohammad v. State of Maharashtra) AIR 1999 SC, 3051 covering this aspect: ".......... In this connection, it would be apt to quote from the Hon’ble Apex Court Judgment (Sophia Gulam Mohammad v. State of Maharashtra) 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 against the order of detention. 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." 4. From the grounds of detention, it is quite evident that the detenu had exfiltrated to POK in the year 2003 and has infiltrated into the Valley in the year 2004. It is also clear that he had escaped from the training camp with out arms and ammunition. Thereafter, was grazing cattle and was at large till January, 2009, is alleged to have started providing food and fruits to the militants but the said allegation is vague, no material is available to support such position. That apart, it is stated that he has not been provided copies of statements recorded in connection with aforesaid FIR. Further more, the detenu was required to be supplied the material forming basis for the detention order in the language which he could understand so that he could make effective representation before the competent authority against his detention, which also renders the detention the order of detention illegal. Further more as to whether the grounds of the detention have been read over and explained to the detenue is also questioned. Record reveals that the grounds of detention have been read over and explained to the detenue in Urdu and Kashmiri languages by ASI, Abdul Majid but affidavit on behalf of the said ASI has not been filed. When it is so, it cannot be said whether that the grounds of detention were read over and explained to the detenu or not.? 5. It is quite apt to quote from the Hon’ble Apex Court Judgment (Mst. When it is so, it cannot be said whether that the grounds of detention were read over and explained to the detenu or not.? 5. It is quite apt to quote from the Hon’ble Apex Court Judgment (Mst. Raziya Umer Bakshi v. Union of India and others) AIR 1980 SC 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 grounds 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 grounds 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." 6. In the order of detention, the detaining authority has recorded that the detenue shall be lodged for maximum period same is recorded against the provisions of law. It is the domain of the Government to fix the period of detention after considering the opinion of Advisory Board. By recording that the detenu shall be lodged in jail for maximum period, the authorities concerned seem to have taken said position into consideration while fixing the maximum period of detention, therefore, rights of detenu are infringed. 7. 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. 8. Hence the detention order No.05-DMK/PSA of 2009 dated 29.06.2009 is quashed. 7. 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. 8. Hence the detention order No.05-DMK/PSA of 2009 dated 29.06.2009 is quashed. Detenue namely, Mohammad Ashraf Khan S/o Mir Aslam Khan R/o Gujjer Patti Sogam, District Kupwara 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. 9. The petition accordingly disposed of.