Ab.Hamid Rather vs State and Others

Heard learned counsel for the parties at length and also perused the file.

As argued by Mr. Mir that the order of detention passed against the detenue Abdul Hamid Rather S/o Mohammad Sultan Rather R/o

Iqbalabad, Bemina by the District Magistrate, Srinagar vide order No. DMS/PSA/428/ 96 dated 2531997, is without application of mind He has

submitted that the grounds of detention served to the detenue reveal that the detenue was arrested in FIR No. 336 of 1996 under Section 302, 10

CIA, registered in Police Station Shergari against him. It is also alleged that the detenue was arrested in case FIR No. 162 of 1994 for the

offences under section 3/4 TADA, 2/25 I. Arms Act, registered by Police Station Shergari. On having registered this heinous offence against the

detenue, the respondent No.2 apprehends that as because the individual may be let off on bail, so he cannot be prevented from indulging in

activities which are prejudicial to the security of the State and in order to curb his such activities, he has justified his passing of order of detention.

Mr. Mir while projecting his arguments submitted that the offence under section 302 RPC is a heinous offence which is punishable with death or

imprisonment of life In the ordinary course, bail is not so easy to be obtained in this offence. Not only that, the detenue has not even applied for

grant of such bail so far before any forum. So merely saying that the detenue may be released on bail is only hypothetical and only a surmise and

conjecture. Had District magistrate applied his mind while drafting the order of detention in its correct perspective, a man of his caliber, being an

(AS officer, would not have fallen to such a mistake. This means that he has not applied his mind to the facts of the case.

There is nothing on file to suggest that the detenue has either applied for bail or he has been granted bail by any court.

Mr. Mustaffa appearing for the respondents could not make me to understand as to why the order of detention has been numbered as 428 of

1996 dated 2531997. I have come across hundreds and thousands of detentions order, but I have not seen an order like this, wherein predate of

some previous order and then date it in future date. May be that order was already in their possession, but they wanted to bring it at par and

making it 2531997. Otherwise for all practical purposes, it seems to have been passed in the year 1996, but while doing so, as I have said in the

foregoing paras that there is nonapplication of mind, the detaining authority has forgotten to writ No. 428/1997 instead of No. 428 of 1996. It

speaks that there are readymade stocks of orders with the detaining authority and only names and date is to be spelt out thereon to suit the

circumstances of the case. This can be an instance where out of stock of orders, the detaining authority has only written name of individual and the

date, he has not felt that date to be corrected. May be it is due to heavy rush of work load as the District Magistrates are called upon day in and

day out to pass detention orders, they are not in a position to coup up with the heavy rush of work, as such, they have kept readymade orders.

It may be known to the detaining authority that while passing detention orders, he is depriving a person of his liberty and to deprive a person of

his liberty, due care and caution is to be taken and application of mind is to be made and that is why the orders are to be passed by senior persons

like District Magistrate, Divisional Commissioners and by the Government itself. However, the orders passed by the District Magistrate/Divisional

Commissioners are to be approved by the Government under subsection (4) of Section 8 of the J&K Public Safety Act, only to see that the

individual/detenue's liberty is not marred. But the Government also seems to have been doing it mechanically. They too are not discharging their

duties and adhering to the provisions of SubSection (4) of Section 8 of the Act. It is in a routine matter that, let ""Baboo"" in the secretariat writes a

note and the Secretary In charge or under Secretary approves it on behalf of the Government. Somebody in the Government has to apply its mind

to justify the order passed by the District Magistrate, which has validity of only twelve days, because said order is to be submitted to the

Government within 12 days after it has been passed and the order is to be approved as per mandates of the Act of subsection (4) of section 8.

This is not to be done in a routine manner. Something more is required to be done and that something more does not seem to have been done by

the Government in the matter.

Moreover the grounds of detention served to the detenue are not intelligible. They have given some abbreviations. I called upon Mr. Mustaffa,

State Counsel to let me know what does CIA means and he too could not give any answer.

It may be noted that the person of the individual was not made to understand the grounds of detention so as to enable him to make a

representation under the statutory provisions of subArticle (5) of Article 22 of the Constitution and the representation which is to be made, should

be an effective one and not an illusory one. The effective representation can be made by a person only in case he understands the grounds of

detention. When the grounds of detention are being served in coded words and in abbreviations. I fail to understand how an individual or detenue

will be in a position to appreciate.

The Government before detaining a person in preventive detention has to deliver the grounds of detention to the detenue within five days or at

the most within ten days for the reasons to be recorded, so that the detenue is in a position to make a representation and he is to be appraised of

that right. This statutory and mandatory right given to an individual detenue is a must, otherwise the detenue will be condemned unheard which is

unknown to the constitutional mandates. Thus in order to see that the individual is in a position to make representation, he is to be apprised of his

right and giving him the grounds of detention in the language which he understands fully.

I see one more lacuna in the order of detention and that is that with one stroke of pen, the respondent No.2 has ordered the detention of the

detenue for a period of 24 months. No doubt the detaining authority i.e. State can detain a person to the maximum period of 24 months, but after

following due course of procedure and law. Otherwise what is the use of getting the order of detention approved by the Government so as to

enable the Government to take a decision by referring the matter to statutory Advisory Board for their opinion as to whether there are sufficient

grounds for continued detention of the detenue or not. After the statutory Advisory Board hears the detenue, peruses the documents and them

conveys its opinion regarding continued detention of the detenue, the State Government has the power either to act on the advice of the Statutory

Advisory Board and to pass order at any time. So when the District Magistrate is passing an order for 24 months by one stroke of pen, that means

he has given gobye to all the procedure which statute has laid down. On that court also, the order of detention cannot stand judicial scrutiny.

In the totality of circumstances, this petition is allowed and the order of detention bearing No: DMS/PSA/428/96 dated 2531997 passed by

respondent No.2 is quashed. Let a writ of mandamus go to the respondent, commanding them to release the detenue forthwith, unless otherwise

required in any substantive offence. This petition is disposed off accordingly.