Nek Alam vs State and Another

Order of detention passed by District Magistrate, Kupwara vide his order No. 108 of DMK/PSA dated 30101995 for a period of two years,

has been put to challenge.

Rule nisi has been issued to the respondents and in response thereto, they have appeared and filed the counter affidavit which is on the file.

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

Petitioner has thrown challenge to the order of detention on all the available grounds which are usually being taken in such petitions. Petitioner

has specifically pleaded that the District Magistrate, while passing the order of detention has completely shown his nonapplication of mind. In the

grounds of detention, the detaining authority has made the person of detenue accountable for the alleged activities of his organization. The detaining

authority is required to get subjective satisfaction that the activities of the individual are subversive or prejudicial to the security of the State and not

for the alleged activities of his organization. The detenue as per grounds of detention has not indulged in any activity. However, he is being alleged

to have crossed the IAC alongwith other militants for receiving training in the use of sophisticated weapons and at the time of his arrest, certain

arms and ammunition is alleged to have been recovered from him, for which a regular F.I.R. under No. 68 of 1994 stands registered in Police

Station Kupwara. Substantive law has taken care of the alleged recovery of arms and ammunition and as such, detenue cannot be taken into

preventive custody under the Provisions of Public Safety Act.

It may be brought on record that the provisions of Public Safety Act are to be pressed into service for detaining a person without regular trial,

and without hearing him. He is only given a chance and option to represent about such and against such order. On the other hand, at the regular

trial, the accused is not only provided with the documents of the allegations of his involvement but also he is being heard at the time of framing of

the charges and then at the time of trial and the evidence which is being produced against him. The accused is also given a change to cross examine

the witnesses at the trial. Even after the conclusion of the trial, accused has to produce defence, and before conviction, he is to be heard for

quantum of sentence. So there are so many fetters and riders in putting a person behind the bars or imprisoning him under a substantive offence.

But recourse to the preventive detention is only to be achieved by detaining a person, making an order by concerned District Magistrate of the

Divisional Commissioner or the State, as the case may be to circumvent the activities of the individual, who is alleged to have indulged in the

activities which are prejudicial to the security of the State. To achieve this object, the detaining authority has to get his subjective satisfaction of the

activities of the individual and to come to a definite finding that such activities, which are to be enumerated in the grounds of detention are

prejudicial to the security of the State and as such, his detention is required.

When a person is detained under the preventive detention, and when his detention case is put before the statutory advisory Board, they have to

hear the detenu and also go through the representation, if any, made and when the Statutory Advisory Board finds and comes to the conclusion

that there are sufficient grounds for the continued detention of the detenue, then the Government has the option either to confirm the order of

detention or revoke the same. All this process is to be completed within the stipulated period as provided by the statute. The riders which have

been imposed under the provisions of J. and K. Public Safety Act are :

(i) it is incumbent and mandatory on the part of detaining authority at the time of passing of detention order that he shall furnish copy of grounds of

detention to the detenu within five days or within ten days for the reasons to be recorded in writing and the grounds must be explained and

communicated to the detenu in the language, he understands.

Admittedly, here the detenu is an illiterate/farmer and 5th primary pass. So when he is being tendered grounds of detention as per averments

made in the counter filed by the respondents, wherein they have specifically stated that the grounds of detention have been delivered to the detenue

and explained him, the said in the language Urdu/English which he fully understands and in response to that he has been made to put his thumb

impression on the receipt of delivery of such grounds of detention. 8. Now the fallacy, lies that in case a person understands Urdu as well as

English, why he has put his thumb impression is a big question mark ? The person of the detenu could have been delivered the grounds of detention

in Kashmiri language and had same been done, the things would have been otherwise, i.e. the grounds of detention have been served to him in his

mother tongue. What is the purpose of explaining the grounds of detention ? The purpose is obvious that the person must know as to why he is

being detained so that he will exercise his option of representation given to him by the Constitution, as well as, by the statute and this representation

is not illusory. It is something which the detenu has to avail and explain his innocence. So a person cannot explain his innocence unless and until he

is not being apprised of all the guilt brought home to him. This was not introduced in the statute by way of pleasure of the legislature. It was

intentionally incorporated in the Statute and these mandates are to be followed by the detaining authority and once these constitutional and

statutory provisions are followed, that will be called that due course of law has been followed.

Here in the case in hand, I don't find that the respondents have followed due course of law in detaining the detenu. So the very foundation of the

detention order of the detenu is shakey and has no legs to stand.

For the reasons stated above, this petition is allowed and the order of detention passed against the detenu is quashed and let a mandamus go

to the respondents to release the detenu forthwith from preventive detention under the aforesaid order, unless otherwise required in any substantive

offence. Petition is disposed of accordingly.