Talib Hussain Lone vs State of J&K & Ors.

The detenue namely Talib Hussain Lone S/o Gh. Mohd Lone, R/o Dogripora Tehsil and District Pulwama has been arrested by the Security

Forces on 20.07.2008. After interrogation detenue has been handed over to Police Station, Bijbehara, where case was registered as FIR No.

135/2008 for commission of offence punishable under section 7/27 of Indian Arms Act. While in custody detenue was ordered to be detained

under the provisions of Public Safety Act pursuant to detention order No. DMA/PSA/DET/2008/10 dated 30.07.2008. Dissatisfied with the

order of detention, brother of the detenue has filed this petition seeking quashment of the same.

Appearing counsel for petitioner first contended that the detenue who was in custody had not applied for bail, neither bail had been granted.

Furthermore, Section 27 of Arms Act prescribes the punishment of life imprisonment, so the likelihood of obtaining bail at the stage of passing of

detention order was unimaginable. The detaining authority was required to state compelling reasons warranting passing of detention order. The

submission is forceful because when a person is involved in connection with commission of offences which carries life imprisonment, obtaining of

bail is far from imagination unless some evidence during trial is recorded or otherwise mitigating circumstances to believe noncomplicity exist.

Detaining authority has simply mentioned that there is every likelihood of release on bail. Same is baseless; more so when the detenue has not

applied for bail, how it could be said that there is likelihood of release of detenue on bail?

It is quite relevant to quote Para 5 of the judgment of Hon'ble Apex Court (Surya Prakash Sharma vs. State of UP) reported in 1994, SCC

(Cr.) 1691:

The question as to whether and in what circumstances an order for preventing detention can be passed against a person who is already in custody

has had been engaging the attention of this court since it first came for consideration before a constitution Bench in ""Rameshwar Shaw vs. District

Magistrate, Burdan,"" To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelwat vs. Union of

India wherein three Judge, Bench, after considering all the earlier relevant directions including Rameshwar Shaw answered the question in the

following words:

The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that

purpose must show that:

i) the detaining authority was aware of the fact that the detenue was already in detention and

ii) there was compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression ""compelling

reasons"" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the

detaining authority on the basis of which it may be satisfied that;

(a) the detenue is likely to be released from custody in the near future and

(b) that it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent

him from engaging in such activities.

The second contention of the learned counsel is that the copies of order of detention as well as other material forming the basis for the detention

order have not been supplied to the detenue so as to enable him to make an effective and purposeful representation against his detention which

right is guaranteed under Article 22(5) of the Constitution of India.

Nonsupply of the material as well as grounds of detention is violative of the rights guaranteed under Article 22 (5) of Constitution of India. From

the perusal of file, it nowhere emerges that the material forming basis for the detention has been furnished to the detenue. Further more as to

whether the grounds of the detention have been read over and explained to the detenue is also questioned.

Despite repeated opportunities, respondents have failed to file counter affidavit and pursuant to order dated 23.12.2008 case was processed

for hearing with liberty to the respondents to file counter affidavit and deposit the imposed costs, when the petition was taken up for hearing,

neither respondents have filed counter affidavit nor have chosen to remain present. Detention record too has not been made available, leaving the

court with no other option except to consider the detenue's petition on the basis of what has been urged by the counsel in support of the petition.

It is quite apt to quote from the Hon'ble Apex Court Judgment (Mst. Raziya Umar Bakshi vs. Union of India and others) AIR 1980 SC Page

1751 as to what has been laid down:

The service of the grounds of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language

which is not known to the detenue, unless the contents of the grounds are fully explained and translated to the detenue, it will tantamount to not

serving the grounds of detention to the detenue and would thus vitiate the detention exfacie.

In cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenue, it must see to it

that the grounds are explained to the detenue, a translated script is given to him and the grounds bear some sort of a certificate to show that the

grounds have been explained to the detenue in the language which he understands. A bare statement at the stage when Habeas Corpus petition is

filed in the court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported

by any document or by any affidavit of the person who had done the job of explaining or translation.

In the totality of the facts and circumstances what surfaces is that the order of detention has been passed absolutely in violation of rights

guaranteed under Article 22(5) of Constitution of India. Thus order of detention is not sustainable.

The detention order No. DMA/PSA/DET/2008/10 dated 30.07.2008 is quashed. Detenue namely Talib Hussain Lone S/o Gh. Mohd Lone,

R/o Dogripora Tehsil and District Pulwama is ordered to be released forthwith provided he is not required in connection with any other case.

The petition accordingly disposed of.