Gh. Hassan Parray vs State and Others

B.L. Bhat, Judge

Detune Ghulam Hassan Parray S/O Late Abdul Khaliq Parray R/O Batnoor Tral, district Pulwama, through his friend Mohammad Ashraf Lone

has sought indulgence of this court through the medium of the instant writ petition under Article 226 of the Constitution of India read with Section

103 of the Constitution of Jammu and Kashmir State, for quashment of detention order No. 17/DMP/ 2001 dated: 21-06-2001.

It is inter-alia maintained in the petition that the detune Ghulam Hassan Parray, who is a peace loving person, was arrested by the security forces

on 27-03-2001 on false and frivolous accused and came to be booked in FIR No. 20/2001 for the offence punishable u/s 7/25 Indian Arms Act

and in FIR No. 5/2001 for the offence u/s 307 RPC and 7/25 IAA, both of Police Station Tral: that while in police custody in the said case,

respondent No. 2 came to pass the detention order impugned dated: 21-06-2001, whereby detune was ordered to be detained for a period of 12

months and came to be lodged in District Jail Kathua: that the order of detention is bad in law because of the fact that the detune was arrested on

17-03-2001 in FIR Nos. 20/2001 and 5/2001 both of Police Station Tral, in winch the detune had never applied for bail: that the detaining

authority without assigning any compelling reasons for passing the detention order impugned, came to pass the said order; that the detune had

studied only upto to 6th standard and is able to read and write only Urdu and Kashmiri languages; that the grounds of detention are couched in

English language which is neither intelligible nor understandable to the detune; that no translation copy of the detention order impugned was served

upon the detune; that the detaining authority has not supplied the copy of the dossier and other material relied upon by him in passing the impugned

order; that the grounds of detention are vague; that the detaining authority has not formulated the grounds of detention and has not recorded his

subjective satisfaction, but has straightway relied upon the dossier submitted to him in this regard.

On admission of the writ petition, respondent No. 2, District Magistrate. Pulwama, after being put on notice, filed his counter affidavit, wherein it

is inter-alia stated that the detune was detained with a view to prevent him from acting in any manner pre-judicial to the security of the State; that

the detention order has been based on the grounds detailed in the memo of grounds of detention; that the detune was initially arrested in case FIR

No. 20 of 2001 of P/S Tral and as there was apprehension of his being released on bail, the order of detention impugned has been passed on 21-

06-2001 and same came to be approved by the Government on 29-06-2001 and it is thereafter on 04-07-2001 that the order of detention was

executed and the detune was taken into preventive detention; that after the approval of the said detention order, the case was referred to the State

Advisory Board which opined in favour of the continued detention of the detune, consequently Govt. pursuant to section 17 of the Jammu and

Kashmir Public Safety Act. 1978 passed the order dated: 23-08-2001, confirming the detention of the detune and further ordered that the detune

be detained for a period of 24 months from the date of his detention; that the detune was apprised and informed of his right of making a

representation to the Government against his detention order.

Heard learned counsel for the parties and also perused the file.

The petitioner, as indicated, has assailed the order of detention on various grounds but the learned counsel appearing on his behalf has laid much

stress on the ground that since the detune was arrested on 27-03-2001 in FIR No. 20/2001 of P/S Tral u/s 7/25 1AA and in FIR No. 5/2001 of

Police Station Tral for the offence u/s 307 RPC and 7/25 IAA and there were no compelling reasons for passing the detention order impugned

because the detune or any person on his behalf had never applied for bail in the said cases. It is further submitted that the impugned detention order

does not disclose that there is any apprehension of detune being released on bail.

I have gone through the detention order which is marked as annexure ""A"". This detention order nowhere discloses that the detaining authority

has recorded his satisfaction to the effect that there is immanent possibility of the detune being released on bail in the FIR No. 5/2001 u/s 307 RPC

and 7/25 IAA and HR No. 20/2001 for the offence u/s 7/25 IAA. both the Police Station Tral, for which he stands booked.

True it is that in the memorandum of grounds of detention marked as annexure-B on the file reveals that ""at present you are under security of

police and there is every likelihood of resuming your activities after gelling bailed out."" The detaining authority while formulating the grounds has not

indicated any material on which he has recoded his satisfaction to the effect that there is likelihood of The detune to be released on bail. In the

counter affidavit also, the detaining authority has not referred to any material on which he has come to record his satisfaction "" this effect. Besides

this, from the perusal of the file, there is nothing to show that the detune either himself or anybody else on his behalf has taken any steps forgetting

himself released on bail. The Apex Court in case titled as Amrit Lal and others v Union of India reported as 2011 SCC 341. while dealing with this

question, has held as under:-

As held in Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, , if a person is in custody and there is no imminent possibility of his

being released there from, the power of detention should not ordinarily be exercised. There must be cogent material before the officer passing the

detention order that the deteune is like to be released on bail. The inference must be drawn from the available material on record and must not be

ipse dixit of the officer passing the order of detention. In the present case the detune being released on bail was, however, not available in the

reasoning as provided by the officer concerned. The reasoning available is the ""likelihood of his moving an application for bail', which is different

from ""likelihood to be released on bail"". This reasoning is not sufficient compliance with the requirements as laid down. The available cogent

material in this case was the likelihood of having a bail application moved in the matter but not obtaining a bail order. Therefore, the detention order

is liable to be quashed,

Further perusal of the detention order dated: 21-06-2001 on the file reveals that it does not disclose compelling reasons for recording the

detention order impugned, when admittedly the detune has been arrested on 27-03-2001 in FIR No. 20 of 2001 for the offence punishable u/s

7/25 IAA and in FIR No. 5/2001 for the offence u/s 307 RPC and 7/25 IAA of P/S Tral.

Law is well settled on the point that when the detune is in police custody, his detention under preventive law is only possible when there are

compelling reasons justifying such detention despite the fact that the detune is already in detention. Reference in this behalf is made to a case tilled

Surya Prakash Shanua v. State of U.P. AIR 1995 SCW 1841.

As indicated that the detune came to be arrested in FIR No. 20/2001 for the offence punishable u/s 7/25 IAA and FIR No. 5/2001 for the

offence punishable under sections 307 RPC and 7/25 IAA, both of Police Station Tral on 21-03-2001 and the detention order impugned came to

be recorded by respondent No. 2 on 21-06-2001. Since there is delay of more than three months in recording the detention order after the arrest

of the detune, therefore, this can be safely said that live and proximity link between the grounds of detention and purpose of detention has snapped

on account of the undue and reasonable delay. In this connection reference is made to a judgment of the Apex Court in K.P.M. Bashir v. State of

Karnataka and another, reported as AIR 1992 SC 1354. Also see 1993 Supp 2 SCC 617.

Having regard to the above law and the facts, the detention order recorded by respondent No. 2 is bad in law and is liable to be quashed.

The petition is accordingly allowed and the detention order dated: 21-06-2001 passed by respondent No. 2 is hereby quashed and the detune

is directed to be set at liberty forthwith, unless required in any other case. A copy of the order be forwarded to the concerned authority.