Ghulam Mohi-ud-din Paul vs State and others

By medium of this petition for a writ of Habeas Corpus, the detention of Abdul Gani Paul, U/s 8 of the J&K Public Safety Act, hereinafter

referred to .as Act, under the orders of the District Magistrate Budgam, has been challenged, inter alia, on the following grounds:

1) That the grounds of detention were supplied to the detenue without supplying him the order of detention. The grounds of detention supplied bear

neither any number and nor any date. This has deprived him of the right to make a representation against the order of his detention.

2) That the grounds of detention were supplied to the detenue on 8121990, which are in English Language. The detenue is not well versant with

English Language and therefore could not make a representation.

3) That the material on which the detaining authority assumed his subjective satisfaction for the detention of the detenue has not been supplied to

him, with the result that he could not make a representation.

4) That the order of detention has been passed on the apprehension of detaining authority that the detenue may be released on bail in the case

registered against him. According to him this apprehension of the detaining authority is baseless as the detenue has not even applied for bail.

The respondents have not filed any counter affidavit despite enough opportunity granted to them with the result the allegations made in the

petition on an affidavit have remained unrebutted. However, Mr. Jalali, has produced the record pertaining to the detention of the detenue.

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

From the perusal of record it transpires that the detenue has been detained under the Act on 20.4.1991. The Govt. has confined the detention

order on 1.5.1991. The grounds of detention have been furnished to the detenue on 24.7.1991. This means, the grounds have been supplied to

him after 34 days of his desertion under the Act on 20.4.1991. Under the Act' the maximum period for furnishing of the grounds of detention is 12

days, only. That being so, the detention is vitiated, being violative of the Act. This ground is in itself sufficient to invalidate the order of detention as

it knocks out its very bottom.

The order of detention is dated 20.4.1991 and it states as under:

Whereas you have been detained under order No dated 20.4.1991, made by the undersigned under section 8 of the J&K public Safety Act.

The language of the order is unambiguous that on 20.4.1991, the detenue stood detained and that being so, he was to be supplied the grounds of

detention within a maximum period of 12 days from that date. That has not been done as is clear from the record. On the other hand the grounds

of detention have been supplied to him on 24.7.1991.

The detaining authority has not filed any affidavit to the contrary that the detenue was not detained on 20.4.1991, and therefore this fact is

established beyond any doubt. No other record has been produced before the court to show that the detenue was not detained on 20.4.1991

under the Act. It is the record of the respondents which has shown all this, otherwise allegedly the order of detention has not been supplied to the

detenue at all. A specific allegation has been made in this regard in the petition and that too on affidavit, which has remained unrebutted. Not only

that, the last line of the grounds of detention is sufficient to prove the same, which reads as under:

The detention order will follow separately"". This order has not been furnished to him at all. In the record other is no receipt from the detenue in

this behalf. The receipt obtained from the detenue which is on the record, makes an interesting reading. It appears to be a proforma prepared by

the concerned authorities. It specifically shows only one thing that one leaf of grounds of detention was supplied to the detenue on 24.7.1991.

Regarding other matters it does not show any thing:

So the question is if the order of detention was not communicated to the detenue, how could he know as to when he was detained under the

order. In the grounds of detention also the date of his detention has not been given anywhere. That being so, how could the period for the supply

of grounds of detention be computed by him or how could he point out that they were not supplied to him within the prescribed time. Similarly such

order will remain in force only for 12 days from the date of the making of the order unless it is confirmed by the Govt. If the date on which the

order is made is not communicated to the detenue, how is he expected to examine its validity under the Act.

In these circumstances the nonsupply of the order of detention to the detenue has deprived him of many legal, rights given to him by the Act, which

also vitiated the order of detention.

The detenue has made a specific allegation that he does not know the English language and the grounds of detention supplied to him were in that

language and, therefore, he could not make a representation against that order. The detaining authority or the officer who has furnished the grounds

of detention to him has not filed any counter affidavit to rebut his allegation. The court has, therefore, to presume at this fact also has deprived him

of his right to make a representation against the order of his detention, the has a right to make a representation against his detention under Act 22

(5) of the constitution of India and if he is deprived of this right in any manner what so ever 'that makes the order unconstitutional.

In. the petition it has been stated on affidavit that no material on which the detaining authority assumed his subjective satisfaction, was supplied

to him so as to make a representation against the order of detention. As no counter affidavit has been filed by the detaining Authority, the court has

to presume that no such material was supplied to, him. In the grounds, of detention a mention has been made of one FIR, the copy whereof also

has not been furnished to him. After all the grounds of detention must be based on some material Which is that material, even the court has not

been taken into confidence not to speak of the detenue. The detaining authority cannot be expected to be as eyewitness to the incidents, mentioned

in the grounds of detention. There must be some material on which the said grounds of detention are based.

In this view of the matter nonsupply of the material to (he detenue which was considered by the detaining authority for assuming his subjective

satisfaction, had deprived him of his right to make representation against his detention, which is violative of the constitution of India.

In the grounds of detention the detaining authority has stated that there was every apprehension that the detenue may be enlarged on bail in FIR

3 of 90, in which he was arrested and, therefore, his detention was necessary under section 8 of the Act.

In the petition it has been stated on affidavit, that the detenue has not moved any application for bail and therefore, he being enlarged on bail was

out of question. This fact has not been rebutted by the respondents as they have not filed any counter.

The FIR No. 3 of 1990 has been registered for the offences U/s 3/4 TADA Act, section 3 OSA, section 3 EAQ and section 120 B of the APC.

These offences are of serious nature and all of them nonboilable. It is not easy to get a bail by an accused in such offences, except on the merits of

the case, more so, the detenue has not even moved an application for bail. In these circumstances unless there were some compelling

circumstances the detenue could not be detained under the Act, when he was already under arrest in such a case. No Compelling reasons have

been shown for his detention in the Act when he was already under arrest in the offences where he could not be enlarged on bail as a matter of

right.

For the reasons mentioned above, fallow the petition and hold the order of detention impugned in this petition as unconstitutional, illegal and

bad in law. The detenue is, therefore directed to be released forthwith. The superintendent SubJail Hiranagar or the Incharge of any other jail

where ever the detenue has been lodged, is directed to release him at once.

The record has been returned to Mr. Jalali, the file be consigned to records.