Mohd.Yousuf Malla vs State of Jammu & Kashmir and Another

Nirmal Singh, J.—Mohammad Yousuf Malla, S/o Abdul Gani Malla, R/o Check Ganastan, Sumbal, Baramulla, was detained by the District

Magistrate, Baramulla, vide order No. 156 of 2004 dated 31st March 04, in exercise of powers u/s 8 of the J&K Public Safety Act, 1978 (here-

in-after referred to as the Act). The present petition has been filed by the detenu through his brother Farooq Ahmad, seeking quashing of order

impugned.

The detention order has been challenged on various grounds taken in the petition but at the hearing of the petition, the learned Counsel for the

petitioner confined his argument on the point that the detaining authority has passed the detention order without application of mind. It is stated that

the detention order has been passed on 31st March04, which has actually been issued against one Mohammad Ayoub Malla, S/o Abdul Gani

Malla, but subsequently a corrigendum was issued on 25th June04, vide which the name of the detenu has been changed to Mohammad Yousuf

Malla. He further stated that the grounds of detention and other relevant material was not put up before the Government for its approval. It is

stated that the grounds of detention itself show that the detaining authority has not even read the draft before signing it. He pointed out that in the

last paragraph of the grounds of detention, it has been mentioned that the detenue is a locally trained militant of Ikhwan Party Outlawed

Organisation. His remaining at large is highly prejudicial to the security of the State, in the event of his release on bail. He submitted that the

detaining authority is not aware as to when the detention order was passed and whether the detenu was at large or he was under custody. He also

submitted that the order has been passed in violation of the mandatory provisions of Sections 13 and 15 of the Act. It is stated that there is delay in

execution of the detention order but no explanation has been put forth by the respondents as to why the detention order was not executed within

the prescribed period.

Mr. JI Ganai, learned Govt. Advocate, appearing for respondents submitted that there is no violation of the mandatory provisions of the Act as

the detenu was at large. He submitted that no prejudice has been caused to the detenu for not executing the order as per Section 13 of the Act as

he was not in custody. He also submitted that while passing the detention order there was a typographical error with regard to the name of the

detenu which was subsequently ratified by issuing a corrigendum in this regard dt. 25th June04. It is submitted that after the corrigendum was

issued, there was no necessity to put the case before the Government for its approval second time as the approval was already taken for detention

of the detenu.

Before considering the rival contentions put forth by the learned Counsel for the parties, it will be appropriate to notice the relevant provisions of

the Act.

Section 8 of the Act authorized the Government to pass a detention order of certain persons. It reads as under:

Detention of certain persons- (1) The Government may- (a) If satisfied with respect to any person that with a view to preventing him from acting

in any manner prejudicial to-

(i) the security of the State or the maintenance of the public order; that with a view of regulating his continued presence in the State or with a view

to making arrangements for his expulsion from the State, it is necessary so to do, make an order directing that such person be detained.

(2) any of the following officers, namely:

(i) Divisional Commissioners,

(ii) District Magistrate,

may, if satisfied as provided in sub Clause (i) and (ii) of Clause (a) or (a-1) of Sub-section (1), exercise the powers conferred by the said sub

section.

(4) When any order is made under this section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the Government

together with the grounds on which the order has been made and such other particulars, as in his opinion have a bearing on the matter, and no such

order shall remain in force for more than twelve days after the making thereof, unless in the meantime it has been approved by the Government.

Grounds of order of detention to be disclosed to persons affected by the order-(l) When a person is detained in pursuance of a detention

order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for

reasons to be recorded in writing, not later than ten days from the date of detention communicate to him grounds on which order has been made,

and shall afford him the earliest opportunity of making a representation against the order to the Government.

Reference to Advisory Board- In every case where a detention order has been made under this Act, the government shall, within four weeks

from the date of detention under the order place before the Advisory Board constituted by it u/s 14, the grounds on which the order has been

made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also report

by such officer under Sub-section (4) of Section 8.

The detention order in this case was passed by the District Magistrate on 31st March04, against one Mohammad Ayoub Malla, S/o Abdul Gani

Malla. The Government approved the detention order on 7th April04, which shows that the detention order was not passed against the detenu.

The Government then issued a corrigendum on 25th June04 after the approval of the detention order by the Government that the name of the

detenu is Mohammad Yousuf Malla, S/o Abdul Gani Malla. This fact is also clear from a noting of Assistant Superintendent, Jail, Udhampur, dated

30th June04. From the said noting, it is crystal clear that the detenu was already in custody prior to 30th June04. On the same date, as per the

counter filed by respondents, the detention order has been executed upon the detenu.

A perusal of Section 13 of the Act shows that when a person is detained in pursuance of a detention order, the authority making the detention

order has to communicate as soon as may be but ordinarily not later than five days and in exceptional circumstances and for reasons to be

recorded in writing, not later than ten days from the date of detention, the grounds of detention to the person concerned and has to afford him the

earlier opportunity of making a representation against the order of detention. Respondents in the instant case have not placed on record any

material to show on which date, the detenu was detained in pursuance to the detention order passed on 31st March04. The detention order itself

shows that the detenu was already in custody on the day when the detention order was passed as in the detention order it has been mentioned as

under:

From what has been stated above, it is clear that you are a locally trained militant of Ikhwan Party Outlawed Organisation. Your remaining at large

is highly prejudicial to the security of the State, in the event of your release on bail

When the detenu was already under custody, it was obligatory upon the detaining authority to communicate the grounds on which the order of

detention was made promptly i.e. within five days and in exceptional circumstances not later than ten days from the date of detention. If the

grounds of detention have not been communicated to the detenu within five days or within ten days as the maximum period as prescribed u/s 13

with reasons to be recorded in this regard, then the proceeding vitiates.

Respondents in the instant case have also violated the mandatory provisions of Section 15 of the Act. Under this Section, the Government has

to place before the Advisory Board within four weeks the grounds on which the order has been made. The representation, if any, made by the

effected person is also to be placed before the Advisory Board. But as indicated above, the respondents in the present case have not placed any

material on the record to show as to on which date the detenu was detained but from the order of detention, it appears that the detenu was in

custody when the detention order was passed and after that he has not been released.

It has been specifically pleaded in the petition that the detenu was arrested by the police in the year 2002 from his residence and was booked

in FIR No. 35/2002 u/s 307/127 RPC and 7/25 I.A. Act. The detenu approached the court the law and was accordingly released on bail.

However, in order to curtail the liberty of the detenu on unfounded and baseless grounds, the police again arrested the detenu and kept him in

unlawful detention in terms of detention order No. 156 of 2004 dt, 31st March04.

Respondents in their counter have not controverted the above averments. So it establishes that the detenu was already in custody on the day

when the detention order was passed. When a person is not in custody, no prejudices is likely to be caused to him but when a person is already in

custody and the detention order is not served upon him within the prescribed period as provided u/s 13 of the Act, then a serious prejudice is

caused to the said person. Reliance in this regard can be placed on Hem Lall Bhandari Vs. State of Sikkim and Others, . Similar view has been

taken by this Court in the case of Balkar Singh v. State of J&K and Ors. 1991 KLJ 301.

The detaining authority in the instant case has not applied its mind while passing the detention order. The detaining authority is not certain

whether the detenu at the time of passing of detention order was at large or was in custody. Even otherwise one of the grounds taken by the

detaining authority in the grounds of detention is as under:

Being arrogant and changing your loyalty from one outfit to another outfit there is every likelihood that you if motivated by ISI and their agents may

change loyalty and indulge in militancy again.

The above said ground taken for detention does not come under the ambit of Section 8 of the Act.

In view of the above discussions, I am of the opinion that there is violation of mandatory provisions of the Act in the instant case, and as such,

the proceeding against the detenu vitiates. This petition is accordingly allowed. The detention order, impugned in the petition is quashed.

Respondents are directed to release the detenu forthwith, if not required in any other case.