Mohd.Ashraf Akhoon vs State & Ors.

In terms of order No. DET/PSA/08/575 of 2008 dated 27.11.2008, respondent No.2 has ordered detention of petitioner (detenu) under the

Provisions of Jammu and Kashmir Public Safety Act 1978. This order is called in question in this petition.

The grounds of challenge inter alia are that the detention order is violative of Article 22(5) read with Article 21 of the Constitution of India and

as also the procedural safeguards prescribed by J&K P.S.Act 1978. The grounds of detention are vague, nonexistent and irrelevant. The detenu

was already in custody under the substantive law when his preventive detention was ordered and the detenu having not applied for bail before any

court for his release in the FIR No. 51/2008; the detaining authority has not delineated the compelling reasons to order detention of the detenu.

The grounds of detention besides other material referred to therein has not been made available to the detenu.

Respondent No.2 has filed his counter affidavit wherein it is stated that none of the constitutional fundamental or statutory rights of the detenu is

violated or infringed by passing the detention order. In fact it was passed to prevent the detenu to indulge in activities which are prejudicial to the

security of the State.

Heard learned counsel for parties. Considered the matter.

Right to liberty besides being constitutional right guaranteed under Article 21 of the Constitution of India is also one of the basic human rights of

an individual. The said right cannot be taken away unless there are sufficient grounds available for depriving a person of his liberty. It is true that the

State has to struck balance between individual rights and rights of Society. It is further true that the state is duty bound to protect the interests of

the society which are of paramount importance when pitted against individual interests. When the state and/or statutory authority takes an action to

deprive an individual of his liberty then the law which permits taking of such action has to be strictly construed by the authority. In the case of

preventive detention the allegations as contained in grounds of detention are not required to be proved as such allegations do not go through the

mill of trial. The subjective satisfaction arrived at on the basis of material available with the detaining authority has to be thus subjected to close

scrutiny to find out as to whether the satisfaction arrived at us bonafide or not.

The record reveals that the order of detention refers to communication of Sr. Superintendent of Police District Baramulla dated 26th Nov. 2008

and the grounds of detention referred to FIR No. 152/08. The record further shows that this material has not been made available to the petitioner.

The record further reveals that the detenu has been made available two leaves and it further reveals that contents of grounds of detention have been

read over and explained to the detenu in Urdu/Kashmiri languages in order to enable the detenu to make an effective representation against the

detention order. The material referred to in detention order and copy of the FIR having not been made available to him has disabled the detenu to

make an effective representation and in consequences thereof not only the statutory safeguards available to detenu under the provisions of P. S Act

of 1978 but also the constitutional safeguards as contained in Article 22 of the constitution have been violated.

The detention order is further rendered bad in law as the detaining authority has not recorded any compelling reasons for issuing detention order

in the face of the criminal case having been registered against the detenu and the detenu being in custody and having not applied for bail before any

competent court of jurisdiction as pleaded in the petition nor there was any compelling necessity, in view of the likelihood of detenu moving an

application for bail, which is lacking in this case. Reference in his behalf has made to judgment reported in AIR 2000 SC 365.

The detention order, as the record reveals is replica of dossier, which shows lack of application of mind on the part of detaining authority. The

record further reveals that translated copy of the grounds of detention in the language in which the detenu could understand same has not been

provided to him which has also deprived the detenu to make an effective representation.

The detention order under these circumstances is held to be bad and is accordingly quashed. In arriving at this conclusion reliance is placed on

the judgments reported in AIR 1997 SC 1925,2004 (1) SLJ 166,2005 (2) SLJ 518.

Accordingly the detention order No. DET/PSA/08/575 of 2008 dated 27.11.2008 issued by respondent No.2 is quashed and the detenu

namely Mohammad Ashraf Akhoon S/o Ghulam Hassan Akhoon R/o Kanpora Baramulla is ordered to be set at liberty forthwith, if not, required

in any other case.

Record of the case be returned to Govt Advocate.