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2011 DIGILAW 727 (JK)

Mehraj-ud-din Kalwal v. State & Ors.

2011-12-23

MOHAMMAD YAQOOB MIR

body2011
1. Order of detention bearing No. DMS/PSA/32/2011 dated 28.9.2011, issued by respondent No. 2, is contended to be in utter violation to the law and the liberty of the detenue. 2. Perusal of the petition would indicate that the detenue had been detained vide detention order dated 27.8.2008, same was quashed by this Court on 08.12.2008. Again detenue was detained vide detention order dated 15.12.2008, same was also challenged by medium of HCP No.5 /2009 but during pendence of the petition same order was revoked by the Government vide order dated 26.3.2009. However, instead of releasing the detenue, he was arrested in connection with FIR No.49/2008 on 31.3.2009. Detenue was released on 09.04.2009 but again was arrested on 04.12.2009 and in pursuance of another detention order dated 10.6.2009 was lodged in District Jail, Rajouri. On release was again arrested on 19.3.2011 in connection with case FIR No.60/2010 P/S Nigeen and then again detained pursuant to detention order dated 31.3.2011. The said order was challenged by medium of HCP No. 156/2011. Meanwhile, detenue had developed some ailment and was advised complete bed rest. 3. Application for lodging the detenue in Central Jail, Srinagar was dismissed against which LPA No.93/2011 was filed but before the said appeal could be decided, the detention order was revoked vide order dated 10.5.2011 rendering LPA as infructuous. 4. Then again instead of releasing the detenue, was arrested in FIR No.60/2011 P/S Nigeen. Thereafter his custody was shifted to FIR No.86/2010 P/S Nowgam, then again was shifted to P/S M. R. Gunj in connection with FIR No.87/2009. Thereafter by virtue of order of detention impugned has been detained and directed to be lodged in Kotebhalwal Jail, Jammu, hence the instant petition. 5. Interim direction was granted on 13th of October, 2011 to the effect that the lodgment of the detenue shall not be changed. 6. The preventive measures may be unavoidable so as to deter a person from indulging in the activities which are prejudicial to the security of the State but exercise of such power also carries a duty to ensure that the safeguards available for respecting the personal liberty are also respected. The liberty of a person is precious, curtailment thereof has to be by way of exception, that too when cogent grounds are available and then even if cogent grounds are available, still the procedural safeguards are to be observed. 7. The liberty of a person is precious, curtailment thereof has to be by way of exception, that too when cogent grounds are available and then even if cogent grounds are available, still the procedural safeguards are to be observed. 7. Detenue has a guaranteed right of representing against the detention and to show his innocence and same right flows from Article 22(5) of the Constitution. That right can be effectively made use of only when material forming basis for the detention are furnished to the detenue. The records as produced nowhere indicate that the material as has been referred to in the grounds of detention has been furnished to the detenue. At least in connection with criminal cases such as FIR Nos. 70/2007, 49/2008, 60/2011,86/2009 and 87/2009, the statements recorded under Section 161 Cr. P.C were required to be furnished to the detenue which admittedly have not been furnished. From the records it is clear that warrant of detention (one leave), grounds of detention (two leaves), copy of the dossier (four leaves) and other relevant record (four leaves) are shown to have been furnished to the detenue. What are those four leaves is not mentioned, therefore, it is clear that the material which has been made basis for formulation of the grounds of detention has not been furnished to the detenue. 8. Further it is mentioned that the grounds of detention were read over to the detenue but the officer who is shown to have read over the grounds of detention to the detenue has not filed any affidavit so as to support the same position. 9. It is also not clear from the records as to whether detenue in connection with cases as have been registered against him from time to time, mention of which is made in the grounds of detention, was enlarged on bail which also shows lack of application of mind because in case detenue has not been admitted to bail, then compelling reasons were to be recorded for passing the order of detention. 10. The detenue is stated to be ailing and requires medical treatment and his position is stated to be such which is equivalent to disablement. 11. 10. The detenue is stated to be ailing and requires medical treatment and his position is stated to be such which is equivalent to disablement. 11. While summing up what will emerge is that for maintaining the order of detention the requirement of respecting the safeguards is imperative but in the instant case disablement of the detenue from making effective representation, then position of the detenue having been involved in various criminal cases and non-application of mind on the part of Detaining Authority would lead to only one conclusion that the order of detention is not in accordance with law, as such, is set aside. Detenue is directed to be released provided not required in connection with any other case. 12. Detention records as produced be returned to the learned counsel for the respondents.