Jammu & Kashmir High Court - Srinagar Bench
Parvaiz Ahmad Pala vs State Of J&K And Ors on 3 December, 2019
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
{W (Crl) 338/2019
Reserved on: 27.11.2019
Pronounced on : 03.12.2019
Parvaiz Ahmad Pala
...Petitioner
Through: Mr. Wajid Haseeb, adv.
vs.
State of J&K and ors.
...Respondents
Through : Mr. S.H Naqashbandi, 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. 37/DMK/PSA/19 dated 07.08.2019, purporting to have been passed by District Magistrate Kulgam, whereunder detenu namely Parvaiz Ahmad Pala s/o Mohd Ayoub Pala R/o Matibugh Yaripora, Tehsil Yaripora District Kulgam, is under detention.
2. The detenu through his father 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 no fresh activity has taken place after the detenu was admitted to bail;
b) that the detenu has not been provided the material forming basis of the detention order, to make
2|Page 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-detenu 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 admitted to bail, no fresh activity has been taken place by the detenu after admitted to bail. The detaining authority has passed the impugned detention order on the previous activities of the detenu. It is also submitted that there is inordinate delay in passing of the detention order by the detaining authority. The last activity took place on which the detention order has been based was 22.10.2017, whereas it is submitted that the detention order has been passed on 07.08.2019, meaning thereby almost about two years. 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. It is submitted that the detenu is suffering from cancer and is under regular treatment of the doctors as depicted
3|Page from the medical records annexed with the file. The detenu's further detention will not only lead to his death but also deprive his family members to serve him in these difficult days for which the detenu may live.
6. Learned counsel for petitioner-detenu in order to strengthening his argument has referred to and 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, no longer survives as the detenu was already facing trail in the competent court of jurisdiction. Learned counsel for respondents have failed to explain the delay in passing the order of detention, 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 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:
4|Page "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.
9. Accordingly, the detention order no. 37/DMK/PSA/19 dated 07.08.2019 is quashed and detenu, Parvaiz Ahmad Pala s/o Mohd Ayoub Pala R/o Matibugh Yaripora Tehsil Yaripora District Kulgam, is directed to be released from preventive custody forthwith. The matter stands accordingly disposed of, however there is no order as to costs. Records be returned to Mr. S.H Naqashbandi, AAG.
(Ali Mohammad Magrey ) Judge Srinagar 03.12.2019 S.A Jalali, SYED AYAZ HUSSAIN 2019.12.04 11:51 I attest to the accuracy and integrity of this document