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2013 DIGILAW 329 (JK)

Ab. Qayoom Thoker v. State Of J&K

2013-05-23

Virender Singh

body2013
1. One Abdul Qayoom Thoker S/o Gulzar Ahmad Thoker R/o Village Check Cholena, Tehsil & District Shopian (hereinafter to be referred to as `detenu') through his father Gulzar Ahmad Thoker seeks quashment of Detention Order No. 15/DMS/PSA/2012 dated 27.12.2012 passed by District Magistrate, Shopian-respondent No.2 herein, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 (for short, `PSA'). 2. Detention record made available to the Court by the learned State counsel indicates that the detention order was executed upon the detenu in Central Jail, Srinagar on 02.01.2013, as he was already lodged in the said Jail in case FIR No.349/2012 under Sections 7/25 Arms act and 3/4 Explosive Ordinance Substance Act registered in Police Station, Shopian. The date of arrest of the detenu is indicated as 15.11.2012, reference thereof has also been made in the grounds of detention. 3. Detenu is shown to be carpenter by occupation and his affiliation with Lashkar-e-Toiba (LeT) a Militant Outfit as OGW (Upper Ground Worker). 4. The grounds of detention which have been made basis of passing the impugned order of detention read thus:- "It has been reported to me by the Superintendent of Police, Shopian vide his letter No.CS/PSA-12/8089-90 dated 21.11.2012 that you are born in Village Check Cholena in year 1986. You are 5'-8' tall, having wheatish complexion, black hair/eyes, round bearded face, a mole on nose and aged about 27 years. You an Upper Ground Worker (OGW) of Lashkar-e-Toiba (LeT) Militant Outfit. You received your early education from a Public School at Hind Sitapora and after passing 5th Primary you took admission in Govt. High School Hermain for further studies wherefrom you passed 8th class. Thereafter you left your studies and were helping your family by working in their fields and in the meantime you also took to carpentry. You came into contact with LeT foreign militant Sajid and a local militant Khursheed Ahmad Naikoo @ Kataal who motivated you to work for LeT Outfit at Upper ground level. Said organization is having its Headquarter at Pakistan (Pak) and is aided by ISI of Pakistan. It has motivated a number of Kashmiri youth into militancy and after imparting them weapon training in training Camps established across border/LOC and dispatched them to across for carrying out subversive activities. The outfit has spread a reign of terror in the minds of people residing in J&K State. It has motivated a number of Kashmiri youth into militancy and after imparting them weapon training in training Camps established across border/LOC and dispatched them to across for carrying out subversive activities. The outfit has spread a reign of terror in the minds of people residing in J&K State. The aim and object of the organisation is to secede J&K State from the Union of India and annex it with Pakistan. You after joining the said terrorist organization were providing the following assistance to the militants of LeT Outfit in Shopian area:- Arrange food, shelter and other logistic system. Arrange safe hideouts and finance through extortions. Provide information about movement of security forces with the militants. Delivers messages of militant commanders to other militants. Concealed the Arms/Ammunition and Explosive material of militants at safer places. Motivated local youth into LeT Cadre. On 15.11.2012 Police Shopian received an input that LeT terrorists with the assistance of its active OGW namely Ab Qayoom Thoker R/o Check (You) are planning to carry out a big explosion in District Shopian and have dumped some explosive material in the compound of your house. On receipt of this information a Police party headed by Dy. SP, Ops. Immamsahib raided your house and arrested you on spot. On your instance 40 KGs of RDX and 36 rounds of Pika rifle were also recovered from your compound. In this connection a case FIR No.349/2012 U/S 7/25 A. Act, 3/4 Explosive Substance Act has been registered in P/S Shopian and investigation taken up. During investigation of the case it came to surface that before their exfiltration to Pakistan, LeT militants Sajid R/o Pakistan and Khursheed Ahmad Naikoo R/o Saidpora Shopian have dumped some explosive material and ammunition with you for future use. They have also strictly instructed you to keep close contacts with the LeT cadres of district Shopian and Kulgam still operating to provide them every possible assistance. You were further instructed by the said militants that the recently elected Panches/Sarpanches should be taught a lesson for having participated in the Panchayat Elections which is why you was spreading a reign of terror in the whole District of Shopian. You were further instructed by the said militants that the recently elected Panches/Sarpanches should be taught a lesson for having participated in the Panchayat Elections which is why you was spreading a reign of terror in the whole District of Shopian. Thus from the above it is evident that you are a dreaded and hardcore OGW of LeT terrorist Organization who is adamant to spread a reign of terror among the general public in District Shopian including newly elected Sarpanches /Panchs so that they shall give in and resign. Thus the sole motive behind creating panic and fear psychosis in the minds of people and Punches/Sarpanchs is to disrupt the peace and tranquility and law and order of the State. From the above it can be very well deduced that if you are allowed to roam around freely you may prove hazardous to the peaceful living of the society. You are a hardcore OGW of the banned LeT terrorist group as stated above and if not taken into preventive custody may commit offences which may result in colossal loss of life and property. In view of the above facts, it is evident that you are a dreaded and hardcore OGW of LeT terrorist Organization, deeply involved in anti national activities which are prejudicial to the sovereignty and territorial integrity of the country/state and threat to the public order. As the normal law is not sufficient to deter and prevent you from such activities, as such it has become imperative to detain you under the Provisions of Public Safety Act, 1978. Thus in order to curb your activities, your detention under the preventive law has become imperative. It is, therefore, prudent and legally desirable to detain you under Sec. 8 of J&K Public Safety Act, 1978 so that you are restrained from further indulging in anti-national/subversive activities." 5. The instant petition was admitted on February 19, 2013, on which date four weeks' time was granted to the State to file counter affidavit. Since the needful was not done within said period, another opportunity was granted for the same, still no response, yet another opportunity for the same, but to no effect, ultimately last opportunity to do the needful, yet no response. This constrained the Court to close the right for filing the counter. Since the needful was not done within said period, another opportunity was granted for the same, still no response, yet another opportunity for the same, but to no effect, ultimately last opportunity to do the needful, yet no response. This constrained the Court to close the right for filing the counter. Since the detention record was available with the learned State counsel, the main matter was heard finally by the Court on 16.05.2013 and reserved for orders. 6. At the very outset, Mr. Qayoom submits that the impugned order of detention deserves to be quashed on the ground of non-supply of `grounds of detention' to the detenu by the Detaining Authority after passing of the detention order and before it was approved by the Government, thereby depriving him (detenu) of an opportunity of putting forth his stance seeking revocation of the order if he so wanted, within the fixed period of twelve days. According to learned counsel, depriving the detenu of making a representation to the Detaining Authority even at the initial stage would amount to infraction of valuable right available to him. 7. Dwelling upon his arguments further on this very aspect, Mr. Qayoom submits that if one reads Section 8 (4) of PSA by implication, it can be said that so long as the order of detention has not been approved by the State Government, the Detaining Authority for any good reason can revoke the same within that prescribed period either on its own or on representation of the detenu, whereas the second situation would arise only if the detenu is made aware of the grounds of detention, on which he has been detained. This being the statutory position, non-communication to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government, would amount to depriving of a valuable right available to the detenu right from the stage of passing of detention order, as such, infringement of Article-22 (5) of Constitution of India. He submits that in the case at hand, if one looks at the communication addressed to the detenu by District Magistrate, Shopian, (Annexure-C), there is no reference about providing grounds of detention to the detenu. 8. In support of his arguments, Mr. He submits that in the case at hand, if one looks at the communication addressed to the detenu by District Magistrate, Shopian, (Annexure-C), there is no reference about providing grounds of detention to the detenu. 8. In support of his arguments, Mr. Qayoom has relief upon a judgment of Hon'ble Supreme Court in case titled "State of Maharashtra and others v. Santosh Shankar Acharya" reported as " AIR 2000 SC 2504 ". 9. The arguments put forth by Mr. Qayoom appear to be somewhat attractive, although not available to him in the case on hand. No doubt, valuable right of the detenu under Article 22(5) of the Constitution would start flowing from the date he is detained on execution on the detention order, snatching thereof would certainly amount to infraction of the constitutional right. It is understandable that in terms of Section 8(4) of PSA, the validity of the detention order passed by the District Magistrate or Divisional Commissioner exercising the powers of the State Government, as contained in Section 8(1) of PSA, is not more than 12 days, if it is not otherwise approved by the Government within this period and in terms of Section 13 of PSA, the Detaining Authority is under statutory obligation to inform the detenu of the grounds of order of detention within a stipulated period of five (5) days or in exceptional circumstances not later than ten (10) days from the date of detention, that too, for the reasons to be recorded in writing, the reason being that in case the detenu is able to put forth his stance questioning the said detention order within the said period, District Magistrate may revoke the same. That is the reason that even in exceptional circumstances, the outer limit for communicating the grounds of order of detention to the detenu is kept as ten (10) days from the date of detention so that it is communicated to the detenu within the stipulated period. In any case, the detention order would cease to remain in force, if not approved within twelve (12) days. 10. However, what is said hereinabove is required to be appreciated on the facts of an individual case. In any case, the detention order would cease to remain in force, if not approved within twelve (12) days. 10. However, what is said hereinabove is required to be appreciated on the facts of an individual case. In the case on hand, no doubt if one looks at Annexure-C, a communication addressed to the detenu by the District Magistrate, Shopian, there is no reference to the communication of grounds of order of detention to the detenu, but what is borne out from the detention record available to the Court is that the grounds of detention and the detention order were communicated to the detenu in the Jail on 02.01.2013 as he was already lodged therein relating to FIR No.349/2012. The date of execution of detention order upon him is also 02.01.2013. In a given case, there can be a situation that the detention order is passed on a particular date but it is executed even after reasonably good period till the detenu is nabbed Therefore, it is the date of detention which is relevant for this purpose and not the date of passing of the order, so as to count the period of communication of grounds of order of detention to the detenu as contained in Section 13(1) read with Section 8(4) of PSA. Viewed thus, the arguments advanced by Mr. Qayoom on this count would not put the detenu on any advantageous position so as to take it as a valid ground for quashment of the detention order. 11. The next limb of argument advanced by Mr. Qayoom is that the detenu was already arrested in case FIR No.349/2012 dated 15.11.2012 and detained in Central Jail, Srinagar; he had not applied for bail till the detention order was passed by the concerned authority as is specifically averred in ground (d) of the instant petition which is not refuted by the State as no counter has been filed, therefore, the averments made in this regard shall be presumed to be correct, there was no reason, much less any compelling reason, to pass the impugned order of detention. 12. In support of his submissions, Mr. Qayoom has relied upon a latest judgment of Hon'ble Supreme Court in case titled "Rekha v. State of Tamil Nadu and another" reported as " (2011) 5 SCC 244 ". He referred to Para 23 to 27 of the said judgment. 13. 12. In support of his submissions, Mr. Qayoom has relied upon a latest judgment of Hon'ble Supreme Court in case titled "Rekha v. State of Tamil Nadu and another" reported as " (2011) 5 SCC 244 ". He referred to Para 23 to 27 of the said judgment. 13. I find substance in the submissions advanced by Mr. Qayoom on this aspect. Admitted position before the Court is that till the passing of the detention order, the detenu had not moved any application before any Court of law. Although the averment made in this regard is not refuted by filing counter by the State, yet for my own satisfaction, I have gone through the detention record and find that there is no copy of the bail application available therein. Had the detenu moved any application, there would have been some reference by the State in the grounds of detention which is prepared on the basis of the dossier supplied by the Superintendent of Police. Even if we give some latitude for the same, which normally should not be extended in such type of cases, where liberty of an individual is involved, at least copy of the bail application, if filed by the detenu, should be available in the police record for a very simple reason that it is one and the same police agency only, who has to oppose the bail application and prepare the dossier for transmitting it to District Magistrate for the purposes of arriving at his satisfaction before passing an order of detention. All these steps are not sheer formality which should be taken just in a casual manner, rather it has its for reaching effect. 14. In the case on hand, District Magistrate on the basis of the dossier provided to him where it is said by the Superintendent of Police that normal law is not sufficient to prevent the detenu from such activities which would disrupt the peace and tranquility and law and order of the State, has derived his satisfaction for slapping the detention order upon the detenu, who was admittedly lodged in the Jail for a substantive offence in the aforesaid FIR No.349/2012 and never applied for bail. In this situation when the criminal case was already going on against him, for which, he could be convicted or acquitted and that the ordinary law of land was sufficient to deal with this situation, recourse to passing of the preventive detention order is without any justification, in-turn illegal. The case at hand is also not of that type in which any of the co-accused had moved any bail application and got bail so as to take it as a case of an exception to this rule to derive satisfaction that the person, who was on the same footing has already got the bail and, therefore, there is likelihood of the detenu being released on bail even though no bail application is ever moved by him or pending in any Court. Even otherwise, there appears to be no cogent material available on record on the basis of which the Detaining Authority could reasonably satisfy itself that there was likelihood of his release from Jail. Hon'ble Supreme Court in `Rekha's case (Supra)', while quashing the detention order in somewhat similar circumstances observed in Para-27 as under:- 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being release on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed." 15. The present case when tested on its own facts, following the ratio of Rekha's case (Supra), it can be comfortably said that there was no justification for passing the impugned detention order. 16. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed." 15. The present case when tested on its own facts, following the ratio of Rekha's case (Supra), it can be comfortably said that there was no justification for passing the impugned detention order. 16. Although on the aforesaid flaw only, the impugned order of detention turns out to be unsustainable in the eye of law, yet I feel that I would be failing in my duty if do not deal with the other arguments advanced by Mr. Qayoom with regard to non-supply of translated copy of the grounds of detention to the detenu in the Jail and the same not read over to him (detenu) also. In support of his arguments, Mr. Qayoom has taken the Court to the basic order (annexure-A) wherein there is reference to the furnishing of the copy to the other five (5) concerned, which includes Principal Secretary to Govt. (Home Department), Inspector General of Police (CID) J&K, Superintendent of Police, Shopian, and Superintendent, Central Jail, Srinagar. It is stated in the detention order that copy of the detention order is being forwarded to Superintendent of Police, Shopian in duplicate for execution as provided under Section 9 of the Act. From this, Mr. Qayoom wanted to develop that it is only the detention order which was given to Superintendent of Police, Shopian, for execution and not the grounds of detention, therefore there does not arise any occasion for the Executing Agency to supply the grounds of detention to the detenu, not to talk of reading over the same to him. Arguments appear to be attractive but deserve to be rejected on one aspect at least, when appreciated on the basis of the detention record available to the Court wherein it is stated in so many words that the grounds of detention have been read over to the detenu in the language Kashmiri/Urdu at the time of executing the detention order. Grounds of detention were available with the Executing Officer (Police official), when he approached Superintendent, Central Jail, Srinagar for execution of the detention order. No doubt, on this particular aspect, there is no rebuttal by the State by filing any counter, nevertheless the plea taken herein by Mr. Qayoom has no weight in the light of the documentary evidence available on record. 17. No doubt, on this particular aspect, there is no rebuttal by the State by filing any counter, nevertheless the plea taken herein by Mr. Qayoom has no weight in the light of the documentary evidence available on record. 17. However, I find substance in the second aspect as projected by Mr. Qayoom, that the translated copy of the grounds of detention which the detenu could understand is not provided to him as there is no rebuttal by the State on this count, there being no counter affidavit by the State. Therefore, the judgment cited by Mr. Qayoom in case titled "Powanammal v. State of Tamil Nadu and another" reported as " AIR 1999 SC 618 " would be of advantage to him wherein their lordships while referring to the amplitude of safeguard embodied in Article 22(5) have observed that it extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu, failure to do so would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. It would be relevant to reproduce Paras-8 and 10 of Powanammal's case (Supra), which read thus: "8. The law relating to preventive detention has been crystallized and the principles are well neigh settled. The amplitude of the safeguard embodied in Art. 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 right of being communicated the grounds and of being afforded the opportunity of making a representation against the order. 10. In Chaju Ram v. State of Jammu & Kashmir (1970) 1 SCC 536 : ( AIR 1971 SC 263 ) : 2010 (6) JKJ SC-731, the order of detention was challenged on the ground, inter alia, that the detenu was not explained of the grounds of his detention in the language known to him and, therefore he was deprived of his right of making a representation. This Court held that when dealing with a detenu who could not read and understand English or any language at all that the grounds of detention should be explained to him as early as possible in the language he understood so that he could avail himself of the statutory right of making a representation. The contention that the document in English was handed over to the detenu who affixed his thumb in token of having received it was held not in compliance with the requirement of law which gave a very valuable right to the detenu to make a representation which right was frustrated by handing over to him the grounds of detention in an alien language. The above decision is not authority for supporting the contention canvassed by Mr. Natarajan that explaining the contents of the document, relied upon in the grounds of detention, in the language understood by the detenue, absolves the detaining authority of the duty to furnish translation of such document in the language understood by the detenue." 18. I would like to deal with another argument advanced by Mr. Qayoom which at the first blush appeared to be quite appealing but when appreciated deeply, it lost its strength of acceptance, is that the document referred to in the grounds of detention and made the basis of passing the detention order was not supplied to the detenu, enabling him to refute the same, if he so chose and this would also amount to depriving him of his valuable right, for which, Mr. Qayoom lends support from a judgment of Hon'ble Supreme Court in case titled "Thahira Haris Etc. Etc. v. Government of Karnataka & ors." reported as " AIR 2009 SC 2184 " by referring to para-6. He submits that in the very first line of grounds of detention, it is said that it has been reported to me (reference to District Magistrate, Shopian) by Superintendent of Police, Shopian, vide his letter No. CS/PSA-12/8089-90 dated 21.11.2012 that you are born in village Check Cholena in year 1986 (...thereafter there is a reference to the flashback of activities of detenu) but the copy of the said letter was not made available to the detenu in the Jail. In this regard, I have once again seen the detention record and certainly do not find the copy of the aforesaid letter even in the record made available to the Court. But when one looks at the grounds of detention very carefully, there remains no confusion that in fact the said letter is reproduced in verbatim wherein the complete flashback of the activities of the detenu are reflected. Grounds of detention are made available to the detenu, although not in the manner as strictly required, for which, Mr. Qayoom has been able to cause a dent vis-a-vis sustainability of the detention order, but the ground taken by Mr. Qayoom of not providing the copy of the aforesaid letter to the detenu in the Jail, in my considered view, would not be a ground to buy his argument so as to make the order of detention unsustainable. 19. Perhaps no other material point urged by Mr. Qayoom is left by me untouched. 20. Viewed thus, although on certain aspects put forth by Mr. Qayoom in support of his case and discussed hereinabove in detail, I am not in agreement with him yet on account of other vital flaws projected by him and discussed in detail by me, are enough to hold that the impugned detention order slapped upon the detenu is not sustainable in the eye of law, as such, deserves to be quashed. 21. I am conscious of the fact that the detenu is detained in an offence of serious nature when he was allegedly found in possession of huge arms and ammunition on a particular date when raided by the Police, for which, FIR No.349/2012 already stands registered coupled with the fact that for the purposes of passing the detention order, his affiliation is allegedly shown with a Militant outfit on the strength of certain activities allegedly attached to him. But where the question of liberty is involved, the safeguards provided to the detenu are required to be seriously watched by the Court as personal liberty protected under Article 21 of the Constitution of India is very sacrosanct, therefore it is the obligation of the Detaining Authority to meticulously follow the procedure established by law. In the case at hand, as stated hereinabove, certain vital flaws are staring at the detention order impugned herein, the collective effect would be that it (detention order) cannot remain operational any further. 22. In the case at hand, as stated hereinabove, certain vital flaws are staring at the detention order impugned herein, the collective effect would be that it (detention order) cannot remain operational any further. 22. Resultantly, the petition at hand is allowed. Detention Order No.l5/DMS/PSA/2012 dated 27.12.2012 passed by District Magistrate, Shopian, is hereby quashed. Person of Abdul Qayoom Thoker S/o Gulzar Ahmad Thoker R/o Village Check Cholena, Tehsil & District Shopian, detained in Central Jail, Srinagar, shall be released forth with, if not required in any other case. 23. The authority concerned to be informed of the outcome of the instant petition without any delay. Registrar Judicial to ensure compliance of the order. 24. Detention record to be returned to Mr. Khan, learned Additional Advocate General, by Reader of this court under proper receipt. 25. Disposed of as such.