Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 668 (JK)

Mohd. Hashim Khan v. State Of J. &K.

2009-12-22

SUNIL HALI

body2009
1. This petition has been filed by Mir Majid Bashir on behalf of the detenue, who is alleged to be resident of Balochistan Pakistan. He is stated to have been detained by the respondents and lodged at Kot Balwal Jail Jammu. The grounds of detention reveal that the petitioner is a dreaded Pak trained militant of HuM outfit (an unlawful organization) whose base camp is headquartered at POK. The sole object of this organization is to secede the State of J&K from Union of India and to merge it with Pakistan. In order to achieve this object, the organization believes in carrying out armed struggle against the Government of India. The organization recruits youths from the valley in its rank and imparts them arms and ammunition training across the LoC training camps. In order to achieve this object, the present detenue was recruited by Abu Bakar of HuM outfit based in Pakistan to carry out the activities in the name of Jehad. For this purpose, the detenue was imparted training in POK in a camp in handling arms and ammunition sophisticated weapons and planting of lEDs. While making an attempt to infiltrate in the valley in June 2008, he was apprehended during a search operation at Karnah and from his possession arms and ammunition were recovered. After analyzing these facts, the District Magistrate, satisfies itself that the detenue is required to be detained, as he is potent threat to the security and integrity of the State. 2. This detention order has been questioned by the petitioner on the following grounds:- a. That after observing the fact that a case was registered under FIR no. 31/2008 and lodged in Kot Balwal Jail, the District Magistrate was required to record his satisfaction that he is likely to be enlarged on bail and would indulge in activities which is prejudicial to the security of the State, which has not been done. b. That the dossier and the material on the basis of which satisfaction has been recorded has not been supplied to him by the detaining authority which has prevented him from making an effective representation against the said detention. 3. On the other hand, the stand of the respondents is that the District Magistrate has passed the detention order only after satisfying himself on the basis of the dossier supplied to him by the concerned agency. 3. On the other hand, the stand of the respondents is that the District Magistrate has passed the detention order only after satisfying himself on the basis of the dossier supplied to him by the concerned agency. This court while exercising its jurisdiction under Article 226 of the Constitution of India cannot appreciate the merits of the satisfaction recorded by the District Magistrate. 4. I have heard the learned counsel for the parties and perused the record. 5. There is no dispute that the State while exercising its powers of eminent domain can detain a person without trial. In this regard, Article 22 of the Constitution is an exception to Article 21 in the matter of regulating freedom of a person. Right to freedom is a fundamental right which cannot be taken away but can only be regulated. While doing so, every effort has to be made to ensure that the person who is detained without a trial gets a sufficient opportunity to make an effective representation against the said detention order. Such effective representation can be made after the details and the particulars of all those events are clearly mentioned which would provide the detenue an opportunity for making an effective representation. In the present case, the order of detention is not accompanied by a copy of the dossier on the basis of which the District Magistrate has recorded his satisfaction. The mandate of law is that not only the detention order, but, the material on the basis of which the detention order is required to be issued is also required to be served on the detenue which has not been done. This is clear mandate and requirement of Article 22 sub Clause 5. 6. The petitioner is unable to make an effective representation against the facts which have been made basis of his detention, thereby, denying him right to liberty under Article 22 (5) of the Constitution. 7. The record produced by Dy. AG reveals that there is no dossier in the file. All that is in the record is order of detention and the receipt of the same has been received by him. 8. The second question raised by the learned counsel for the petitioner is that the detenue was under custody as he was involved in FIR no. 31/2008. AG reveals that there is no dossier in the file. All that is in the record is order of detention and the receipt of the same has been received by him. 8. The second question raised by the learned counsel for the petitioner is that the detenue was under custody as he was involved in FIR no. 31/2008. Even though, the District Magistrate has shown his awareness regarding the filing of the FIR but he has not recorded in the detention order that the petitioner already lodged in the jail was likely to be granted bail and on his succeeding to obtain a bail he is likely to commit activities which is prejudicial to the security of the State. He has placed reliance on a judgment of this Court Mst. Raja v. State 2005 (2) JKJ HC-200 : 2005 SLJ 380. 9. For the reasons stated hereinabove, this petition is allowed and the detention order of the detenue bearing no. 16-DMK/PSA of 2008, dated 08/09/2008 issued by respondent no. 2. is set aside. 10. Before parting with the judgment it may be noted that invariably District Magistrates, while exercising their powers under the Public Safety Act, show their ignorance about the manner in which the order of detention has to be issued and also that the material on the basis of which the detention order is issued, is required to be served on the detenue. The courts have been striking down the order of detention merely because of the failure on the part of the District Magistrates to comply with the requirement of law, resultant effect whereof is that not only the liberty of a person is curtailed but conversely people required to be detained go scot-free on this count.