Jammu & Kashmir High Court
Mohammad Hussain Dar vs State And Ors. on 26 February, 2007
Equivalent citations: 2007(2)JKJ231
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. Aggrieved by his detention ordered vide District Magistrate Anantnag's order No. Det/PS A/06/213 dated 13-2-2006, Mohammad Hussain Dar has filed this petition through Abdul Rehman Dar, his father, to seek quashing of the detention order besides seeking compensation of Rs. 20.00 lacs. The detenue is stated to be a permanent employee of the Jammu and Kashmir Bank Ltd working as a peon at its Kokernag branch. He was arrested by Security Forces in FIR No. 11/06 registered under Section 7/25 Arms Act. He was released on bail by the competent court of jurisdiction where after he continued appearing in the trial court. He is reported to have attended the trial before the criminal court on 22-03-2006, 04-04-2006 and 15-05-2006. He, later, as desired by SHO Police Station Kokernag reported to him from where he is alleged to have been shifted to Central Jail Kot Balwal Jammu in execution of Order No. Det/PS A/06/213 dated 13-02-2006. The detenue questions his detention interalia on the ground that the detention order was the result of total non-application of mind of the detaining Authority, which had failed to supply the material, relied upon by it in directing the detention. The grounds of detention were vague, indefinite, and non-existent besides being irrelevant on the basis whereof no effective representation could have been contemplated by a person of ordinary prudence.
2. In the counter affidavit filed by the respondents it has been stated that the detenue was an active member of Hizbul Mujahideen Organization and his activities were prejudicial to the security of the State for which he was detained under the J&K Public Safety Act on 20-08-2006. The counter affidavit of the respondents is singularly silent as to the specific averments made by the detenue in Paragraph No. 2 of his petition, wherein, he says that he had been regularly attending trial and had appeared before the criminal court on 22-03-2006, 4-4-2006 and 15-05-2006.
3. Mr. Shafaqat Hussain, learned Counsel appearing for the petitioner refers to A Mohammad Farooq v. Joint Secretary Government of India and Ors. reported as to urge that the respondents had not explained as to why the detention order dated 13-02-2006 had remained unexecuted despite detenue's being available with the respondents and this non-explanation, besides demonstrating the non-application of mind of the detaining Authority in issuing the detention order, would render the detention unsustainable.
4. Delay in the execution of the detention order may not ipso facto vitiate the detention order, is a position, well settled in law. Equally settled is the proposition of law that in case of delay in execution of the detention order, the detaining Authority is required to justify the delay in execution of the detention order. Absence of explanation justifying the cause of delay in execution of the order, particularly when, the detenue sets up a case of his being always available with the respondents, would, in my opinion, vitiate the detention.
5. The detenue has set up a specific case in the present petition of his being available with the respondents when he had been attending trial in the criminal court. The respondents have opted not to respond to this specific plea of the detenue. I am therefore, left with no other option except to conclude, in the absence of any explanation of the respondents as to why detention order issued in February 2006 was not executed till August 2006 when the detenue was all along available with the respondents, that the detention order No. Det/PSA/06/213 dated 13-02-2006 of District Magistrate Anantnag needs to be set-aside and quashed in view of the law laid down by Hon'ble Supreme Court of India in A Mohammad Farooq's case (Supra).
6. That apart, a bare perusal of the grounds of detention demonstrates that the District Magistrate Anantnag had proceeded on the premise that the detenue was in custody when he had issued the detention order. He does not mention about the release of detenue on bail or about his likelihood of being released on bail and when so released of his likelihood in indulging in activities prejudicial to the security of the State.
7. Law is well settled that when a person is in substantive custody of the Police, the detaining Authority is required to spell out the reasons as to why a person who was already in substantive custody was being detained in preventive custody. Absence of such reasons in the grounds of detention renders the detention illegal as such an order of detention would clearly demonstrate non-application of mind of the officer issuing the detention order.
8. It appears that District Magistrate Anantnag had passed a routine detention order with scant regard for the liberty of the detenue and the provisions of Article 21 of the Constitution of India.
9. For all what has been said above, I find Mohammad Hussain Dar's detention to be unsustainable in law.
Quashing Order No. Det/PS A/06/213 dated 13-02-2006 I allow this petition and direct the release of Mohammad Hussain Dar from custody forthwith if not required in any other case for infraction of penal laws in force in the State.