Mohamad Younis Bhat vs State and Others

By medium of this petition, a writ of habeas corpus sought to be issued for the release of one Mohd Younis Bhat, detained under the orders of

the District Magistrate Srinagar, U/s 8 of the J&K. Public Safety Act, hereinafter referred to as Act.

Instead of filing a proper counter by the detaining authority, Mr. Mansotra Government Advocate, has filed the objections under his own

signatures. However he has produced the record pertaining to the detention of the detenue which is the file No. PSA/DSM/12/91 from the office

of the District Magistrate Srinagar.

I have heard the learned counsel for the parties. I have gone through the file thoroughly and also examined the record produced by the Govt.

Advocate.

It may be stated at the very outset that a proper reply affidavit has riot been filed by the deleting authority. The objections filed by the Govt.

Advocate, under his own signatures cannot be treated as the' reply affidavit of the detaining authority, in any manner whatsoever.

In the objections it has been stated at the very outset that the detention order has been challenged only on one ground in the petit ion which if not

upheld, it is should result in the dismissal of the petition.

This objection of the learned Govt. advocate is on the face of it fallacious. In the detention matters it is an established principle of law that once a

detention order is challenged on whatever grounds, it is the duty of the detaining authority to satisfy the court that all the legal safeguards and

constitutional guarantees have been complied with. The court is also required to examine all the legal aspects of the detention, so as to find out

whether all constitutional formalities have been complied with or not. The ramifications of a writ of habeas corpus are different from other writs and

while reviewing judicially the cases in the former, the court is called upon to scrutinize all its constitutional and legal aspects irrespective of the fact

whether the challenge has been made or not in that regard. It is for the detaining authority to show to the court that all the legal formalities have

been strictly complied with. As no trial is required to be held in the preventive detention cases, the safeguards provided under the constitution are

to be rigorously observed.

The first argument of the learned counsel for the petitioner was that the period of detention has already expired and then fore, the detenue is still

in detention is to be released forthwith. He submitted that the order of detention was passed on 2121991 and as the detenue was taken in

detention in pursuance of that order even before the date. He should have been released on 2121992, after the expiry of one year of detention.

The learned Govt. Advocate on the other hand submitted that the order of detention dated 21291, was served upon the detenue on 29.5.91

and therefore the period of detention has to start from 29591 and will expire on 2951992.

In order to appreciate the respective arguments of the learned counsel for parties, I thoroughly examined the record produced by the detaining

authority. The perusal of the record has shocked my con science in many ways. Almost all the constitutional safeguards provided for the benefit of

the detenue have been thrown to winds.

Firstly, it is a fact that the detention order has been passed on 21.2.91. The said order however does not specify the period of detention at all.

It is silent in this regard, as if he is to be detained indefinitely. Even the Jail authorities unfortunately did not bother to look into the matter. Some

application was repeatedly moved by the detenue, who happens to be a lawyer, in this regard. As late as on 30.12.1991 the Superintendent Jail

was made to awake from his deep slumber, when he wrote a letter to the District Magistrate seeking a clarification as to how long the detenue was

to be detained. In response to his letter, the District Magistrate concerned has replied that the period of detention be treated as one year only.

In my opinion this is not a simple lapse on the part of the detaining authority but amounts to criminal's negligence. Every minute the detenue

spends in Jail become less in his life. So it is a matter of life and death for a detenue. The right to life and liberty is a fundamental right guaranteed in

the constitution of India. This right cannot be taken away unless in due course of law. The detaining authority by passing an indefinite order of

detention has by worst type of nonapplication of mind taken away a guaranteed right of the detenue Firstly, he has not mentioned any period in the

order of detention and when it was brought to his notice later on he at once fixed it as one year. He has completely ignored the mandate of section

17 as also subsection 4 of section 8 of the Act. Subsection '4' supra provides that the detaining authority has to report to the Govt. forthwith the

order of detention alongwith grounds thereof and other particulars and unless the Govt. confirms his order, it shall not remain in force for more than

12 days, section 17 provides that when the advisory Board has reported that there is in its' opinion sufficient cause for the detention of the detenue,

the Govt. may confirm the detention order and continue the detention of the person for such period as it trunks fit.

On the record there is nothing to indicate as to whether the Advisory Board has reported that in its opinion sufficient cause is there for the

detention of the person. Similarly, on the record there is nothing to show that the Govt. has confirmed the order of detention passed by the District

Magistrate.

Even if it is presumed for the sake of argument that the Advisory Board has reported affirmatively and the Govt. has confirmed the order of the

District Magistrate, but the question is for what period. No period is mentioned in the order of District Magistrate. The Govt. order confirming the

order of District Magistrate is not on the record. In these circumstances how has the District Magistrate fixed the period of detention as one year,

after a lapse of 11 months after passing of the detention order.

As stated above, the order of District Magistrate, was to remain in force only for 12 days unless confirmed by the Government the

confirmation by the Government, if any, has not been shown to the court. It is not on the record of the District Magistrate either. After confirmation

of the order, it is the Govt. who has to fix the period of detention. No Govt. order is on the record of the District Magistrate. Similarly the report of

the Advisory Board is not on the record of the District Magistrate and the court cannot presume that the said Board has given any such report.

These are matters of fact and are to prove like facts.

Neither the Govt. advocate in his argument nor his written objections on the file and nor the record of the detaining authority has cleared the

position before the court. In these circumstances the court has no alternative but to hold the order of detention unconstitutional; illegal and bad in

law for the reasons given above. The detaining authority has at no stage of the case before him applied his mind to its facts and it suffers from worst

type of nonapplication of mind and on that ground also the order of detention is not sustainable in the eye of law. Secondly, from the perusal of

record it also transpires that in the grounds of detention it has been specifically mentioned in the last lines of the last para that the detenue has been

detained u/s 8 of Act and the detention order will follow separately. No date is mentioned as to when the grounds of detention were signed by the

detaining authority. It has however, been mentioned therein that the detaining order will follow. It means that the grounds of detention were

formulated and signed before the order of detention were issued. The order of detention is dated 21.2.1991. In the grounds of detention it is

mentioned that he was detained and the order of detention, will follow, it would therefore, imply that in any case he was detained on 21.2.1991,

under section 8 of the Act. In that view of the matter the execution of warrant, on a later date is meaningless, particularly because the detenue was

under arrest since 11.8.90, though in some sustentative offence. The previous arrest of the detenue who was already in the custody of the state,

with the fact that in the grounds of detention it has been stated that he has been detained u/s 8 of the Act, the court will be justified to presume that

he was detained under the provisions of the Act on the date when the order of detention was itself passed. The service of the order of detention at

a later date passes into insignificance. This aspect of the case has many effects. Once it is presumed that the detenue was detained on 21.2.1991

u/s 8 of the Act, the term of detention even if fixed illegally has expired on 21.2.1992. Secondly in that case the grounds of detention were required

to be furnished within five days from the date of his detention There is nothing on the record to show as to when the grounds of detention were

furnished to the detenue.

For this reason also the order of detention is to be quashed.

In these circumstances of the case. I allow the petition and hold the order of detention unconstitutional, illegal and bad in law, which is hereby

quashed. The detenue is ordered to be set at liberty forthwith. The superintendent Jail concerned as also the respondents shall directed

accordingly.