Ayub Rather vs State

This Habeas Corpus Petition moved on behalf of detenue Mohd Ayub Rather by his father throws challenge to detention order No. 60/DMP/2000 dated 13.12.2000 of District Magistrate, Pulwama (respondent No. 2) ordering detention of said Mohd Ayub Rather U/s 8 of J&K P.S. Act 1978 with a view to prevent him from acting in any manner prejudicial to the security of the state. Counter has been filed by the respondent through detaining authority (respondent No. 2)

Ld. counsel for the petitioner in terms has assailed the detention order and questions the detention on the ground that the detenue is a psychiatric patient with known history of disorder and is even registered with psychiatric diseases hospital. Being of unsound mind he is not in a position to know and understand confining him in detention is illegal. Besides, there has been inordinate delay in the execution of detention order and no explanation or reasons given thereof. The dention order is passed on 13.12.2000 while it is executed and detenue taken in preventive detention only on 3.1.2001. Though the detenue was arrested in a regular case FIR No. 85/2000 registered with P/S Tral and that he was given bail by judicial magistrate on 1.12.2000 on the ground of unsoundness of mind, yet the detaining authority has not shown awareness of the bail matter as also of his unsoundness of mind thereby impugned order suffers from nonapplication of mind.

Ld. counsel for respondents Mr A.M. Watali, GA submits that from record it is found that the detenue is suffering from psychiatric problem and is a registered patient with psychiatric hospital, Srinagar. But all the same the counsel submits that the detnue is provided medical treatment depending on the eventuality of requirement for such treatment. The counsel further concedes that there is delay of about three weeks in execution of the detention order and that he is not able to explain or given any reason why so much time was taken to execute the order except that the counsel submits that the time was taken in processing the matter before the Advisory Board and passing of confirmation orders by the Govt under P.S. Act. Counsel further submits that the detaining authority was not aware about the passing of the bail order in the regular caseand therefore, same has not reflected in the grounds or the order. But all the same the counsel submits that the detaining authority was aware of the registration of regular case and yet thought fit to pass the detention order. para 5(e) of the petition reads as: ""That the detenue is of unsounded mind and is a registered patient with the psychiatric diseases hospital Srinagar vide registration No. Z1820, dated 8.12.98. The medical certificate is enclosed with this petition as annexureD"" In counter reply to para 5 (e) reads as:

Ground (e) is not correct, hence denied. The detenue will be provided medical treatment as and when required"".

However, annexureD shows that the detenue is registered patient of Govt Psychiatric Disease Hospital under registration No. Z1820 dated:

18.12.1998 and is diagnosed as a case of 'Bipolar Affective Disorder1 and is being treated in the hospital. The certificate is issued by the members of the Medical Board on 15.3.99 under No. MB/578. The bail order passed by judicial magistrate, Tral (AnnexureC) also shows that the detenue has been given bail in the regular FIR No. 85/2000/U/s 5 Exp. Act on the ground of mental incapacity of the accused. This part from the detention file produced by GA it is seen that even the Advisory Board in its report dated: 13.2.2001 has observed:

...We found that he is mentally disturbed....This man is not receiving the proper medical aid....lodge him in Kotbalwal Jammu wherefrom he could get proper medical aid in Jammu"".

Mr Watali faced with this situation concedes that the detenue is diseased in body and mind and does suffer from a sort of mental disease and is to a degree of unsounded mind.

In the aforementioned facts and circumstances can it be said that the detenue's case is considered by the detaining authority in proper perceptive. The detaining authority has not shown awareness about this aspect of the case. Besides even fulfilment of statutory requirements of the detenue being given opportunity to make representation against detention order cannot be said to be given. He is not in a position to make an effective and meaningful representation against the detention in question.

In Sheeha Barse Vs. Union of India & Ors. (1993 (4) 204) the Supreme Court after the writeup under the title 'jailing the mentally ill' in Calcutta (West Bengal) was brought to its notice, after taking note of the position in such cases obtaining in England and Wales, issued interalia a direction it is declared that the admission of noncriminal mentally ill persons to jail is illegal and unconstitutional"". Obviously this declaration of law by the Supreme Court under Article 141 of the constitution apply to this case with full force.

Admittedly there has been over 21 days delay in executing the detention order from 13.12.2000 to 3.1.2001. No explanation whatsoever or reason therefore is forthcoming from record. Notwithstanding that the detenue was in custody of the State govt under punitive detention, he was not taken in preventive detention within above three week period, which in the totality of facts and circumstances of the case, is inordinate delay to implement the order. There is no explanation or reasons thereto on record. It is to indicate that there is doubt on the geneuineness of the requisite subjective satisfaction of detaining authority from the stand point of 'proximate and live link' between the grounds of detention and purpose of detention.

In K.P.M. Basheer Vs. State of Karnatka and Anr. (AIR 1992 SC 1353) it is observed:

...Under these circumstances, we are of the view that the order of detention cannot be sustained since the 'live and proximate link' between the grounds of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him...

Obviously the impugned and the consequent detention is hit by the above principle.

As admitted on record the subject was arrested on 13.11.2000 in regular case FIR No. 85/2000 U/s 5 Ex.P. substance Act registered at P/S

Tral. He was given bail on 1.12.2000 by the Munsiff Judicial Magistrate Tral (AnnexurerC). The detention order was passed on 13.12.2000. In the grounds no mention is made of the detenue being given the bail as above or he having moved the court for the purpose. In fact in the grounds no reasons muchless compelling reasons is given to warrant detention of the subject under provisions of Public Safety Act. The grounds as also the order is silent on this aspect of the matter.

The Dharmendara Suganchand Chelawat Vs. Union of India (AIR 1990 SC 1196) the court upheld the powers of detaining authority to order preventive detention in respect of a person already in custody for "compelling reasons" to justify such detention. The compelling reasons in this contention has been interpretted to imply.

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) taking into account the nature of the antecedent activities of the detenue, 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...

In the instant case in terms of the grounds of detention the detaining authority has only mentioned that the subject has been taken in custody in the regular case. The grounds do not mention that the detenue would be released from custody on bail or that the application for bail has been

moved. Nothing has been said about a reasonable perspective of the detenue engaging himself in activities prejudicial to the security of the state.

Contextually examination of the grounds would reveal that the grounds compromise of 5 paras. First para is introductory and pertains to period

199192. Para 2 speaks of detenue's association with two persons of Hizbul Mujahideen who have been released from custody. Para 3 is regarding aim and object of the H.M. militant organisation, para 4 concerns arrest of the subject in the above FIR registered at P/S Tral and para 5 says that the detenue's activities being prejudicial to the security of the state, therefore he is detained under the provisions of J&K P.S. Act.

Apart from stale, vague and quite distant narration of ominibous allegations, no reasons muchless compelling reasons, are given to warrant continued detention of detenue. The contention of the petitioner/detenue's counsel on this count is sustainable on record.

For the aforesaid reasons the detention is found vitiated and the detention order is illegal. The order is quashed. Respondents/detaining authority/officer having physical corpus of the detenue Mohd. Ayub Rather S/o Mohd. Ramzan Rather R/o Dadsera Tral Pulwama is directed to release the subject and set him at liberty forthwith provided he is not required in any offence/case or matter. Give copy of this order to petitioner free of cost and communicate the order to concerned for followup action. Record produced by Mr. A.M. Watali, GA is returned to him in open court.