Abdul Aziz Gatoo vs State of J. and K. and Another

Syed Bashir-ud-Din, J.

1.Through this writ petition under Article 226 of the Constitution of India read with Section 103 of Constitution of Jammu and Kashmir, the

detention of Abdul Aziz Gatoo ordered by the District Magistrate, Anantnag for a period of 24 Months vide his Order No. F-69/DMA/PSA/

DET/97350-56 dated 8-5-1997 is challenged on the following grounds :-

That the detenue has not been informed of his right to make representation against the order of detention to the Government and that the grounds

of detention served in english on him have not been understood by him as he is by profession a tailor and an illiterate. The material and documents

referred in the grounds of detention have not been supplied to the petitioner, thereby disabling him to make an effective representation to the

Government. Besides, it is alleged that the detenue was not produced before the Advisory Board and that the order of detention has not been

approved by the Government. The involvement of the detenue in some criminal cases, pendency of the investigations thereto and his not applying

for bail in any case are circumstances which have not been considered by the detaining authority. The order of detention has been passed

mechanically without application of mind. The safeguards provided under Articles 21 and 22 of the Constitution of India and provisions of J & K

Public Safety' Act have not been complied with. The detention is bad both on legal and factual grounds.

Respondent No. 2, District Magistrate, Anantnag has fi led counter, wherein, it is averred that the petitioner has been detained, because of his

activities prejudicial to the security of the State as an active member of militant out fitH.M. The detcnue has been detained under the warrant of

detention for a period of 24 months under the provisions of Jammu and Kashmir Public Safety Act. The detention order lias been approved by the

Government. The detenue has been detained under the detention order on 19-5-1997. ""At the time of execution of the order all the relevant

material pertaining to the detention of the Detenue was provided to the detenue and especially grounds of detention were read over and explained

to the Detenue in English/Urdu which he understands,and thumb impression of detenue obtained."" The detcnue was also apprised of his right to

make a representation to the Government. The case of detenue was referred to the Advisory Board under the Jammu and Kashmir Public Safety

Act. He appeared before the Board. The Board approved the action of the Government. No provision of the Public Safety Act is breached.

Safeguards as laid in Articles 21 and 22 of the Constitution have not been infracted. The writ petition is sought to be dismissed.

I have heard counsel for the parties. On close examination of the petition and the Counter, it can be fairly discerned that pleaded averment of

petitioner being an illiterate not in a position to understand the English language in which grounds of detention were written and conveyed to him is

not, apart from omnibus denial, specifically refuted. In the counter it is not asserted that the grounds of detention were actually readover and

explained to the detenue in the language which he understood. Mere mention that the grounds of detention were read over and explained to the

detcnue in English/Urdu and in token thereof thumb impression of the detenue was obtained, is not sufficient to indicate the language in which the

detenue was made lo understand the grounds of detention. Moreso, in absence of an affidavit ofthc authority who actually served and readover

and explained the grounds to the detenue. The assertion of making the detenue to understand the grounds of detention does not carry conviction.

Admittedly, District Magistrate, Anantnag respondent No. 2, who has filed counter affidavit has not served the grounds of detention on the

detenue. In fact the grounds of detention have been served to the detenue i n Sub Jail Kotebulwal at Jammu by an official of the Jail. There is no

record or an affidavit from any concerned official to indicate that the grounds of detention were actually explained to the detenue and he was

informed of his right of making representation against the grounds of detention to the Government. In the matter of depriving a person of his right of

liberty and personal freedom, the Court insists on filing of an affidavit by the officer or authority who is connected with execution of order of

detention or service of grounds of detention and further the affidavit averments have to be precise and perspiciou.:

In Chaju Ram Vs. The State of Jammu and Kashmir, , the Apex Court held that handing over to deteraie the grounds of detention written in

english and to obtain his thumb impression on it in token of his having received the same is not compliance with law of providing opportunity to the

detenue of statutory right of making representation.

It evinces from paras (f), (g) and (h) of the petition that the detcnue at the time of detention order was involved in criminal case about which the

investigations were on and that the petitioner had not applied for bail. These averments are not at all refuted in the counter. In fact there is not even

murmur against these allegations. Even, the copy of grounds of detention (Annexure-B) on record reveals that the detenue was apprehended on

23-4-1997 by the Security Forces from his village ""Lioseer"" and that at his instance some incriminating articles were also seized. There is no

explanation under which offence and in which case the petitioner was held from 23-4-1997 to 19-5-1997 in Sub Jail Kotebalwal at Jammu. The

combined reading )of the relevant paras of the Counter, order of detention and grounds of detention would reveal that the detcnue had been

arrested on 23-4-1997 and continued to be in custody till detained under the J & K Public Safety Act on 19-5-997 and yet neither the order of

detention nor the grounds of detention reveal that the detaining authority has been aware of pendency of any case or the proceedings under which

detenue was held from inception of his actual apprehension cm 23-4-1997 to 19-5-1997, the date of detention. Whether he was detained in a

regular criminal case or not, has not been made clear. It appear that all these facts, nature of the proceedings and the custody of the detenue till the

order of detention were not either within the knowledge of detaining authority or considered by the authority. It does not appear on record that all

these facts and circumstances were comprehended in its subjective satisfaction by the detaining authority. Subjective satisfaction appears to have

been reached without the awareness and knowledge of these telling facts and consequently the case also suffers from non-consideration of

compelling reasons"", to necessitate preventive detention.

In the facts and circumstances, in my opinion, the non-application of mind is writ large on record to result in invalidation of the detention order.

For the aforesaid reasons, the detention is vitiated and legally bad. The order of detention is quashed and the petitioner (detenue) Abdul Aziz

Gatoo shall be set at 1 iberty forthwith. The petition is accordingly disposed of. Copy of order shall be handedover to detenue free of costs.