Mohammad Aslam Dar vs State of J. and K. and Another

A.B. Qadir Parray, J.—By this petition, detention of one Mohammad Aslam Dar son of Ghulam Rasool Dar R/O Buchpora, Illahibagh,

Soura, Srinagar is being challenged by his father Ghulam Rasool Dar.

The detenue as per averments is alleged to have been arrested in the month of July, 1994 by the security forces during crack down and was

subsequently detained under the provisions of J&K Public Safety Act in terms of order No. DMS/PSA/738/94 dated 30-11-1994 for a period of

24 months. The grounds of detention have also been served to the detenu, who is reported to be 8th class pass and Tailor by profession. Petitioner

has assailed the order of detention in this petition on many counts.

The petition has been admitted to hearing on 1 -4-1995 and in response to the notices, respondents caused their appearance through Mr. A. M.

Bhat, Government Advocate and have also filed the counter-affidavit which is on the file.

Heard learned counsel for the parties and perused the counter-affidavit.

Petitioner has specifically pleaded and assailed the order of detention inter alia on the grounds that the order of detention has not been served to

the detenu; the grounds of detention and the material relied upon and referred to therein has not been provided to the detenu; the detenu has not

been informed of his right of making a representation against his detention order to the Government; that the detention case of the detenu has not

been referred to the Statutory Advisory Board within the stipulated period and that the order of detention has not been confirmed by the

Government within the period prescribed by law; the grounds of detention have not been served to the detenu in the language he understands

namely Kashmiri and so on.

Though the order of detention in the case in hand has been passed by District Magistrate, Srinagar, but the counter-affidavit has been filed by

Additional Chief Secretary, Home, without looking to the records and applying his mind on the subject and to the facts and circumstances of the

case. Nowhere in the counter-affidavit, it is shown as to when the person of detenue was produced before the Advisory Board or whether he was

heard by the said Advisory Board or whether his case was ever placed before Statutory Advisory Board. All these averments made by the

petitioner in the petition have remained unrebutted.

It is an admitted case of respondents as per grounds of detention that the detenu was arrested on 12-7-1994 and was in-fact in the custody of

the respondent/State at the time of passing of the detention order bearing No. PSA/DMS/738/94 dated 30-11-1994. However, as per counter-

affidavit, the order of detention has been executed on 20-3-1995 i.e. after about four months and this unexplained delay in the execution of

detention order has been held by this Court to be fatal to the very detention and as such vitiates the whole detention order. The order of detention,

as such, cannot stand light of the day.

It seems that in the whole process of the case, Government has only exercised its powers envisaged u/s 10-A of the J&K Public Safety Act by

modifying the lodgment of the detenu from Sub-Jail Rangreth to Central Jail, Jodhpur. The other averments made in the counter-affidavit that the

formalities required under law have been complied with by the respondent State are borne out by the records, but these records have not been

made available to the Court despite assurance extended by learned Government Advocate. Thus the Court has nothing but to presume otherwise

and the presumption is that the grounds of detention have not been delivered to the detenu as alleged by him, in the language he understands and

this non-delivery of grounds of detention in the language detenu understands has been held by the Court, amounting to non- communication of

grounds of detention, thereby the detenu has not been able to make a representation against his detention, which is a right guaranteed to him under

sub-Article (5) of Article 22 of the Constitution. All these facts remained unrebutted even though there is counter-affidavit on the file.

At the time of hearing of the petition, learned counsel for the petitioner also raised a legal plea, though he has not specifically pleaded it in his

petition, by submitting that the order of detention passed by District Magistrate and specifying the period of detention of two years, is an exercise

of his excessive jurisdiction.

Under the provisions of Section 8 of the J&K Public Safety Act, the detention order can be passed against the detenu with a view to

preventing him from acting in any manner prejudicial to the security of the State or the maintenance of the public order or the maintenance of

supplies and services essential to the life/community, by the Government under Sub- section (1) of Section 8 and under Sub-section (2) of Section

8 by the Divisional Commissioner or the District Magistrate. However, in the case of orders passed under Sub-section (2) of Section 8 of the J&K

Public Safety Act by the authorities mentioned therein i.e. Divisional Commissioner or the District Magistrate, the detaining authority shall forthwith

report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have

bearing on the matter and no such order shall remain in force for more than twelve days after making thereof, unless in the meantime, it has been

approved by the Government. So this means that the District Magistrate or the Divisional Commissioner, authorities empowered under Sub-

section (2) of Section 8 of the J&K Public Safety Act to pass orders of detention on being satisfied that it is expedient for the security of the State

or maintenance of Public order etc. that order of detention is passed regarding the person, thereby to prevent him from acting in any manner

prejudicial to the security of the State or the Public Order etc.

Thus the order passed under Sub-section (2) of Section 8 of the Act is subject to approval of the Government as required under Sub-section

(4) of Section 8 of the Act and is valid only for 12 days. So if the Deputy Commissioner passes an order of detention against the detenu, that order

has no life more than twelve days under the Statute, en-acted in this behalf. So in case District Magistrate is passing an order of detention for more

than 12 days, that is illegal and has no sanction of law behind it and the law in this behalf is specific which is known as ""Jammu and Kashmir Public

Safety Act"" and the source of said law is the very provisions of Constitution which have ensured liberty of an individual, no-doubt with the rider

that the Parliament can enact laws to curb the liberties of individuals under the statute keeping under consideration the mandates of Article 21 and

22 of the Constitution and other relevant Articles regarding liberty of an individual and other rights enjoyed by a citizen. So the curbs which are to

be imposed on a citizen are to be imposed in accordance with law and the Constitution and any fetter placed on the citizen, which has no sanction

of law or the Constitution at its back is illegal and unconstitutional and cannot stand light of the day.

In the case in hand, argument projected by learned counsel that the District Magistrate having passed the order has virtually taken to himself

the function which is to be performed by a Statutory Advisory Board which is to be constituted u/s 14 of the Act and the functions assigned to the

Statutory Advisory Board u/s 15 and 16 have all been virtually usurped by the District Magistrate, himself. So without reference of the case of an

individual to the Statutory Advisory Board constituted u/s 14 of the Act and without having been referred the matter of the detenue within four

weeks of the order of detention to the Advisory Board for its opinion regarding existence of sufficient grounds for his continued detention or not

and the Board has to return its opinion without eight weeks from the date of reference and after the Statutory Advisory Board has conveyed its

opinion after perusal of the records and hearing of the accused, if he so desires in person, or through documents/representations and the said

Board which is presided over by a Retired or a Sitting Judge of the High Court and is assisted by other members who are/have been/are qualified

to be appointed as Judges of the High Court, have to consider the case of the individual/detenue and after persual of the records and hearing of the

detenue in person or through documents, have to justify and convey their opinion whether there are sufficient grounds for continued detention of the

detenue, to the Government within eight weeks of the reference and the reference is to be made by the Government within four weeks of the

service of detention order.

After the opinion of the Board has been obtained, then it is the function of the Govt. whether to pass Orders for continued detention of the

detenue or otherwise. They can make such orders as provided under Sub-section (I) of Section 17 of the J&K Public Safety Act and the period

of detention is to be determined by the Government as is provided by Sub-section (i) of Section 17. The Government is not even precluded to

revoke the order of detention at any time and even after the Board has opined, justifying the continued detention of the detenue.

The Government has further powers to revoke the orders of detention under the provisions of Sub-section (i) of Section 19 of the Act. u/s 18

of the Act is clear and unambiguous, wherein maximum period of detention has been provided as 24 months, for which a person can be detained in

pursuance of any detention order which has been confirmed by the Government u/s 17 of the Act. But when the District Magistrate without

following the law and having addressed himself properly on the subject, I am afraid that such a District Magistrate should be allowed to function as

such who does not have the basic concept of law on the subject. On this count also, the order of detention is vitiated.

For the foregoing reasons, this petition is allowed and the order of detention bearing No. DMS/PSA/738/94 dated 30-11-1994 passed by

respondent No. 2 is quashed and the respondents are directed that they shall release the detenue forthwith from preventive detention under the

aforesaid order, unless otherwise required in any substantive offence. Petition is disposed of accordingly.