Amar Singh vs State of J&K and others

Petitioner has challenged the detention order No. 17 dated 10101994 passed by the respondent No. 2, District Magistrate, Jammu, against his

sondetenu Narinder Singh whereby detenu has been directed to be detained for two years under the Public Safety Act, on various grounds. The

petitioner denied all the allegations levelled against the detenu in the grounds of detention and has submitted that the detenu was arrested on

1371994 and after subjecting to intensive torture and interrogation at Joint Interrogation Centre, Jammu, was released on 2681994. Thereafter the

detenu remained earning his livelihood by carrying on a business of furniture work till 2321995, while on that day he was rearrested by the Police

Station Satwari from his home and was shifted to Central Jail, Jammu on 2421995. The detenu was served with two leaves; which were in English

language and he was told that he has been detained under P.S.A. for a period of two years. He further alleged that the detenu was produced

before the Advisory Board constituted under Public Safety Act of 1978, on 551995, after ten weeks and two days from the date of his detention.

The detention is alleged to be illegal on the ground that the detenu has not been served with the grounds of detention and he has not been informed

by the respondent No. 2 that he can make a representation against the order of the Government. The grounds of detention had not been read over

and explained to the detenu in Urdu or Hindi language, which language the detenu only knows. The grounds of detention were read in English

language which is not known to the detenu. The order of detention dated 10101994 has been executed after a long delay on 2331995. The

petitioner from 2681994 till 2321995 did not leave his home and was carrying on his business in his home village. The detention order of the

detenu has not been approved by the Government within statutory period, which is mandatory under Section 8 (4) of the Act. The material relied

upon and mentioned in the grounds of detention, i.e., copies of FIR No. 82/1994 etc. have not been supplied to the detenu, which has seriously

affected the right of the detenu of making an effective representation against the detention to the Government.

The respondent No. 2 has filed counteraffidavit stating therein that the detenu was involved in antinational activities prejudicial to the peace and

security of the State, details whereof have been reflected in the dossier and the grounds of detention. The detenu was closely associated with

unlawful organisations. The grounds of detention had been explained to the detenu in accordance with law and served upon the detenu against

proper receipt. The detention order has been passed after application of mind by the detaining authority. All requisite documents were provided to

the detenu against proper receipt.

I have heard the learned counsel for the parties and perused the record.

Perusal of the counteraffidavit reveals that the respondent No. 2 has controverted stating that the grounds of detention were explained and read

over to the detenu in the Punjabi language and the detenu has also been informed of making representation to the Government against the detention

order. The detenu has also acknowledged under his signatures that the grounds of detention have been read over and explained to him in the

Punjabi Language, which he fully understood and the grounds of detention in English language have been handed over to him and he is also

informed of making a representation.

Perusal of the pleadings of the parties bears that the respondent No. 2 has not controverted the factual and legal allegations either in the

counteraffidavit or by producing record to the effect that (1) detenu was produced before the Advisory Board within the statutory period, (2)

order of detention has been approved by the Government within the statutory period, (3) delayed execution of the detention order, and (4) the

materials relied upon for preventive detention have been supplied to the detenu.

One of the specific grounds of the petitioner in the petition is that the detenu was produced before the Advisory Board beyond the statutory

period. The respondent No. 2 has not controverted this allegation. Section 15 of the Public Safety Act, 1978 (hereinafter referred to as the Act)

relevant for the purpose is reproduced. as under :

Reference to Advisory Board : In every case where a detention order has been made under this Act, the Government shall, within four weeks

from the date of detention order, place before the Advisory Board constituted by it under Section 14, the grounds on which the order has been

made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also the

report by such officer under SubSection (4) of Section 8.

The respondents were under legal obligation to produce the detenu before the Advisory Board within four weeks from the date of detention

order. In the present case, according to the petitioner, the detenu was taken in preventive custody on 2321995 and produced before the Advisory

Board on 551995, i.e., beyond ten weeks of his arrest. Such a situation is a violation of the mandatory provisions of law, which renders the

detention order ineffective and unsustainable.

The next argument of the learned counsel, Mr. Surinder Singh, Advocate for the detenu is that the detention order has been executed by the

respondent after a period of 41/2 months and, the delayed execution casts a considerable doubt upon the genuineness of the subjective satisfaction

of the detaining authority regarding the necessity for detaining the detenu to prevent him from acting in a prejudicial manner. He has allegedly stated

in the petition that the detenu was arrested by the Police Station, Satwari, Jammu on 1371994 and sent to Joint Interrogation Centre, Jammu,

where he was subjected to prolonged interrogation and released on 2681994. The detenu was rearrested on 2321995 in execution of the

detention order and from 2681994 till the detenu was taken in preventive custody, never left his home and remained carrying on his business of

furniture work in the vicinity. This allegation has not been replied specifically by the respondent No. 2. The learned counsel for the detenu has in

support of his argument relied upon AIR 1990 SC 225 : (1990 Cri LJ 578) (T. A. Abdul Rehman v. State of Kerala), wherein the Apex Court

has pronounced that unexplained delay of three months in securing arrest of the detenu throws considerable doubt on genuineness of subjective

satisfaction of authority. Para 12 relevant for the purpose is reproduced as under :

Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the

detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a

legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to

preventing him from acting in a prejudicial manner.

The learned counsel for the detenu has further contended that the detention order is bound to be quashed, as the respondent No. 2 has not

proved before the Court the allegations contained in ground (v) of the petition that the detention order has not been approved by the Government.

The respondent No. 2 in reply to this accusation has simply denied the ground stating in the counteraffidavit, that ""para (v) of the ground is denied.

Section 8(4) of the Act stipulates that no such order shall remain in force for more than twelve days after the making thereof, unless in the

meantime, it has been approved by the Government. The respondent has not proved before the Court the compliance of the requirement of

Section 8(4) of the Act, which had mandatory effect, even by production of any evidence. It is incumbent upon the respondent State to prove his

action when it is challenged in the Court of law and the State is asked to meet the accusation the respondent No. 2 could have warded off the

allegation by production of record and nonproduction of the record for proving their action in the Court of law raises a presumption against the

State that the requirement of Section 8(4) of the Act has not been complied with.

The last argument of the learned counsel for the detenu is that the material relied upon for detention of the petitioner has not been supplied to

him. The respondent No. 2 in his counter affidavit in para (ix) has stated that the detenu has been detained by the Detaining Authority keeping in

view the unlawful and subversive activities of the detenu, fully reflected in the dossier and grounds of detention. This assertion of the respondent

No. 2 goes to show that the detention order is based upon the grounds of detention and the dossier. Annexure R3 annexed with the

counteraffidavit of the respondent shows that only 3 (three) leaves containing grounds of detention were supplied to the detenu. Neither the copy

of the FIR nor of the dossier is served upon the detenu as part of the grounds of detention, upon which documents, reliance has been placed by the

detaining authority for preventive detention of the detenu. Learned counsel has relied upon a judgment of this Court reported in 1995 Cri LJ 636

(Baldev Singh v. State of J and K), wherein it is held :

The detenu has a right of making representation against the order of detention, the word grounds referred to in Art. 22 (5) of the Constitution of

India not only include the grounds on the basis of which the order of detention is passed but also the material and documents referred to in order of

detention, copies whereof have also to be supplied to the detenu as a part of the order. Therefore where in the grounds of detention, the reliance

was placed on FIR registered against detenu and in counteraffidavits filed by the concerned authorities it was not mentioned that the copy of FIR

was supplied to detenu as part of grounds of detention the order of detention was not sustainable.

On this ground also, the detention order must fail for the reason that the respondent has not supplied the material documents relied upon for the

preventive detention and also according to his own stand taken in the counteraffidavit.

For the foregoing reasons, the petition succeeds, The Detention Order No. 17 dated 10101994 passed by the District Magistrate, Jammu is

quashed. The respondents are directed to set the detenu at liberty from such preventive detention forthwith.