Feroz Ahmad Shah vs State and Others

Ab. Qadir Parray, J.—By this petition, detention of one Aijaz Ahmad Shah S/o Late Ghulam Mohammad Shah R/o Tengapora, Batamaloo,

Srinagar is being challenged by his brother Feroz Ahmad Shah.

Petition stands admitted to hearing way back on 29-4-1994. Respondents were served and in response to the notices, they appeared through

Mr. Rafiq Bazaz, but miserably failed to file any counter affidavit. A time bound direction seems to have been passed on 11-7-1994 by the then

Chief Justice Hon'ble Mr. Sagir Ahmad, whereunder three weeks time was given to the respondents for filing counter affidavit, failing which,

respondents should produce the original record of the case, so that the petition could be disposed of finally on that date and the case was directed

to be listed on 1-8-1994. It seems that the case has come up today for hearing and till date neither counter has been filed nor the records have

been made available. So the request made by Mr. Rafiq Bazaz for production of records is turned down, because orders were specific and

definite and a time schedule was fixed by the court for production of the records and filing of the counter.

It is averred in the petition that the detenu was arrested by the security forces during crack down operations at Tengapora, Batamaloo on 7-11

-1992 and was booked in FIR No. 20/1992. The detenu was subsequently detained under the provisions of the J & K Public Safety Act vide

order No. PSA/MOS/47/ 93 dated 15-4-1993 passed by District Magistrate, Srinagar, It is further averred that the order of detention was

passed after six months of his arrest and right from the date of his arrest till his detention under the provisions of the J & K Public Safety Act, he

was not produced before any Magistrate for seeking remand.

It is further averred that the respondent/Slate is bound to furnish copy of grounds of detention to the detenu within five days or at the most within

ten days from the date of execution of order of detention. However, the grounds of detention were served to the deten on 25-4-1993 i.e. after

about a period of more than ten days and no reasons have been given for the delayed execution of the grounds of detention which under the

provisions of law is mandatory on the part of the respondents to assign the reasons for delayed delivery of grounds of detention beyond five days.

Even for serving the grounds of detention within ten days, the reasons for such delay are also to be given and communicated to the detenu.

It is also averred by the petitioner that the detenu is an illiterate person and a labourer by profession and he does not know english. However,

the grounds of detention have been served to the detenu in English language and same have not been explained to him in the language he

understands.

The fact that the deten is an illiterate person is evident by the very opening words of grounds of detention which read at the very pre-emble by

stating that ""you are illiterate one and by profession a labourer"". So it was duty bound on the part of the respondents to ensure that the grounds of

detention are served to the detenu in the language he understands and same are explained to him in the language he understands and same are

explained to him in the language he understands namely Kashmiri as pleaded by him. There is no counter on the file to evidence this fact as to

whether the grounds of detention were served to the detenu in the language he understands and non-delivery of grounds of detention to the detenu

in the language he understands amounts to non-communication of grounds of detention and thus the detenu has been deprived of making a

representation against his detention.

The detenu under the provisions of sub-Article (5) of Article 22 of the Constitution has the right to file a representation and this constitutional

right has also been ensured to the detenu in the statute known as Public Safety Act and the relevant provisions thereunder only to ensure that the

person of a citizen is not deprived of the liberty without apprising him of the reasons and the grounds of detention. On this count alone, detention

order is vitiated.

Petitioner has also pleaded that under the provisions of the J & K Public Safety Act. the ease of the detention was to be placed before the

Statutory Advisory Board constituted u/s 14 of the J & K Public Safety Act and as per provisions of Section 15 of the said Act, the case of the

detenu is to be placed within four weeks from the date of execution of the order of detention and the Advisory Board is under an obligation to

return its finding regarding existence of sufficient grounds for continued detention, which has not been done as per averments of the petitioner. The

bald assertions made by the petitioner in this respect and supported by an affidavit have gone un-rebutted by the other side. So it can safely be

concluded that the submissions made by the petitioner are true and correct.

The respondent/State is under law duty bound to show and justify that due course of law has been followed while depriving the detenu of his

liberty, which has not been done.

It has also been submitted that the deten at no stage was informed that he has a right of making a representation against his detention which has

resulted in mis-carriage of justice.

Taking over all effect of facts and the law as marshalled above, the order of detention passed by the respondents bearing No:

PSA/DMS/47/93 dated 15-4-1993 against the detenu is quashed and the respondents are directed to release the deten forthwith from preventive

custody under the aforesaid order unless otherwise required in any substantive offence. The petition is disposed of accordingly.