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2009 DIGILAW 87 (JK)

Liyaqat Sultan Lone v. State Of J&K

2009-02-26

MOHAMMAD YAQOOB MIR

body2009
1. The detenue namely Liyaqat Sultan Lone S/o Mohammad Sultan Lone, R/o Khandripora Panjgam, District Pulwama has been arrested by the Security Forces on 20.07.2008. After interrogation detenue has been handed over to Police Station, Bijbehara, where case was registered as FIR No. 135/2008 for commission of offence punishable under section 7/27 of Indian Arms Act. While in custody detenue was ordered to be detained under the provisions of Public Safety Act pursuant to detention order No. DMA/PSA/DET/2008/12 dated 30.07.2008. Dissatisfied with the order of detention, father of the detenue has filed this petition seeking quashment of the same. 2. Appearing counsel for petitioner first contended that the detenue who was in custody had not applied for bail, neither bail had been granted. Furthermore, Section 27 of Arms Act prescribes the punishment of life imprisonment, so the likelihood of obtaining bail at the stage of passing of detention order was unimaginable. The detaining authority was required to state compelling reasons warranting passing of detention order. The submission is forceful because when a person is involved in connection with commission of offences which carries life imprisonment, obtaining of bail is far from imagination unless some evidence during trial is recorded or otherwise mitigating circumstances to believe non-complicity exist. Detaining authority has simply mentioned that there is every likelihood of release on bail. Same is baseless; more so when the detenue has not applied for bail, how it could be said that there is likelihood of release of detenue on bail? 3. It is quite relevant to quote Para - 5 of the judgment of Hon'ble Apex Court (Surya Prakash Sharma v. State of UP) reported in 1994, SCC(Cr.) 1691:. Same is baseless; more so when the detenue has not applied for bail, how it could be said that there is likelihood of release of detenue on bail? 3. It is quite relevant to quote Para - 5 of the judgment of Hon'ble Apex Court (Surya Prakash Sharma v. State of UP) reported in 1994, SCC(Cr.) 1691:. "The question as to whether and in what circumstances an order for preventing detention can be passed against a person who is already in custody has had been engaging the attention of this court since it first came for consideration before a constitution Bench in "Rameshwar Shaw v. District Magistrate, Burdan," To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelwat v. Union of India wherein three Judge, Bench, after considering all the earlier relevant directions including Rameshwar Shaw answered the question in the following words: The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose must show that; i) the detaining authority was aware of the fact that the detenue was already in detention and ii) there was compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that; (a) the detenue is likely to be released from custody in the near future and (b) that it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." 4. The second contention of the learned counsel is that the copies of order of detention as well as other material forming the basis for 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. 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. 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. From the perusal of record, 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 repeated opportunities, respondents have failed to file counter affidavit and pursuant to order dated 23.12.2008 case was processed for hearing with liberty to the respondents to file counter affidavit and deposit the imposed costs. 7. It is quite apt to quote from the Hon'ble Apex Court Judgment (Mst. Raziya Umar 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." 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. The detention order No. DMA/PSA/DET/2008/12 dated 30.07.2008 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. The detention order No. DMA/PSA/DET/2008/12 dated 30.07.2008 is quashed. Detenue namely Liyaqat Sultan Lone S/o Mohammad Sultan Lone, R/o Khandripora Panjgam, District Pulwama 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.