Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Mir vs State Of J&K And Ors on 26 November, 2019
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
HCP no. 88/2019{W (Crl) 88/2019
Reserved on: 21.11.2019
Pronounced on : 26.11.2019
Mushtaq Ahmad Mir
...Petitioner
Through: Mir Shafaqat Nazir, adv.
vs.
State of J&K and ors.
...Respondents
Through : Mr. Asifa Padroo, AAG
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey.
Whether approved for reporting: YES/NO
JUDGMENT
1. Impugned in this writ petition with a prayer for quashment thereof is the detention order no. 02/DMG-PSA-2019 dated 05.03.2019, purporting to have been passed by District Magistrate Ganderbal, whereunder detenu namely Mushtaq Ahmad Mir s/o Late Abdul Gaffer Mir R/o Kurhama, Lar, District Ganderbal, is under detention.
2. The petitioner-detenu has challenged the order of detention on the following grounds:
"a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody;
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b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;
c) that the detaining authority has not prepared the grounds of detention by itself, which is a pre- requisite for him before passing any detention order.
d) that there is inordinate delay in passing the detention order by the authority"
3. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition.
4. Heard learned counsel for the petitioner-detenu as well as the learned counsel for the respondents, perused and considered the writ record, as also the detention record.
5. Learned counsel for petitioner has submitted that the grounds taken in the detention order and the material referred to and relied upon has no relevance because the detenu was already in custody, therefore, there is no possibility that the detenu be implicated in the activities prejudicial to the security of the State/ maintenance of peace and public order. It is also submitted that there is inordinate delay in passing of the detention order by the detaining authority. It is submitted that the order of detention remain in operation only for 12 days in terms of the Act. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority, therefore, the detention order is bad in law. Learned counsel for petitioner has in order to strengthening his submission referred to and relied upon (1980) 1 Supreme Court Cases 132 : The relevant para is reflected as under:
3|Page "The expressions "law and order", "public order" and "security of the State" are distinct concepts though not always separate. The Act defines the expression 'acting in any manner prejudicial to the security of the state' and 'acting in any manner prejudicial to the maintenance of public order' separately. So an order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one."
6. Learned counsel for petitioner-detenu has also referred to relied upon the case titled "Bashir Ahmad Rather v. State of J&K and ors" , reported as 2017 (II) SLJ 774, wherein the delay in passing the detention is almost one year, such is the position in the instant case. Thus, there is an inordinate delay in passing the order of detention. The Supreme Court in "Rajinder Arora v. Union of India (2006) 4 SCC 796" has held that if no explanation is furnished for long delay in passing order of detention, the same is vitiated in law. The explanation put forth by respondents that detenu may disrupt the security of the state/maintenance of public order, no longer survives as the detenu was already under custody. Learned counsel for respondents have failed to explain the delay in passing the order of detention and therefore, on this ground alone the impugned order is liable to be quashed.
7. The other ground available to the detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the
4|Page material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. The Supreme Court herein In Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, the Apex Court, relying on its earlier judgments in Khudiram Das v State of W. B., (1975) 2 SCR 81;, in paragraph 10 of the judgment, has held as under:
"Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution".
8. In Khudiramcase (supra), the Apex Court has explained what is meant by 'grounds on which the order is made' in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).
In view of the above settled position of law, the detention of the detenu is vitiated, the detenu having been also prevented from making an effective and purposeful representation against the order of detention, therefore, on this count also the detention order is liable to be quashed.
10. Accordingly, the detention order no. 02-DMG-PSA-2019 dated 05.03.2019 is quashed and detenu, Mushtaq Ahmad Mir s/o late Abdul Gaffer Mir R/o Kurhama, Lar, District Ganderbal is directed to be released from preventive custody forthwith. The
5|Page matter stands accordingly disposed of, however there is no order as to costs. Detention records is returned to the learned AAG.
(Ali Mohammad Magrey ) Judge Srinagar 26.11.2019 S.A Jalali, SYED AYAZ HUSSAIN 2019.11.28 15:30 I attest to the accuracy and integrity of this document