Prince Salim Sheikh vs State and Others

By this petition, the detention of one Prince Saleem Sheikh S/o Ali Mohammad Sheikh R/o House No:59/A, Karfali Mohalla, Srinagar is being

challanged by his maternal uncle.

The petition stands admitted to hearing on 9.9.1992 and notices were issued to respondents. In response, they appeared through Mr. R. Pant,

Government Advocate and filed the counter affidavit which is on the file. The petition came up for perusal and hearing.

Heard learned counsel for the parties and perused the material on record.

At the very outset, Mr. R. Pant submitted at the bar that another writ petition bearing No: HC No:953 of 1992 is pending disposal regarding the

same detenue. So by this common order, I propose to dispose of both the petitions. Registry will trace out the same petition and place the order

copy on that petition also.

The grounds of challenge pleaded in the petition are that the procedural safeguards as provided under the constitution and the Jammu and

Kashmir Public Safety Act have not been followed or complied with while ordering the detention of the detenue. The detention case of the detenue

has neither been placed before the Advisory Board within time nor the detenue has been given the right of audience by the said Board. The said

Advisory Board constituted under Section 14 of the Public Safety Act has made no report with regard to existence of sufficient grounds for

continued detention of the detenue within the specified period as envisaged by the statute, which also invalidates the detention of detenue. It is

further averred that the order of detention has not been confirmed by the Government within the prescribed period after receiving the opinion of

Advisory Board. The detenue was never apprised of his legal/constitutional rights that he has a right to make a representation against the order of

detention. The grounds of detention are vague, cryptic and unspecific. It is also averred that the grounds of detention have been served to the

detenue in a language foreign to him, which he does not understand and this noncommunication of grounds in the language not understood by him

vitiates the very detention of detenue. The detenue has neither been served with the order of detention nor the material relied upon and referred to

in the grounds of detention have been provided to him, which has rendered the detenue incapable of making any 'representation not to speak of

effective representation which is guaranteed to him under SubArticle (5) of Article 22 of the Constitution.

The averments made in the petition have been rebutted by the respondents in the counter affidavit. It is submitted that the detenue was taken into

preventive custody pursuant to execution of detention order No: PSA/DMS/392/91 dated 19.3.1.992 and the said order was executed on the

detenue on 16.7.1992 i.e. after about four months. But what deferred the respondents to delay the execution of the order for such a long period,

admittedly the detenue was in the custody of the respondents right up from 21.6.1991, is not forthcoming on record. The counter affidavit is silent

about this important fact. This court has already held in number of writ petitions that delay in execution of detention order on the detenue without

assigning any reasons therefor is sufficient to vitiate the very detention order.

It may be noted that if after passing the detention order by the detaining authority it is not executed on the detenue within the shortest possible

time and is kept without executing on the shelves of archives to be implemented/executed on a date, when it suits the respondents, it will amount to

denying the mandates to the detenue which provide that no order of detention can be passed beyond a period of two years, but in case the policy

followed by the detaining authority is that after passing the detention order, its execution is delayed for months together, then the very provisions of

constitution and the statute gets frustrated. It is the duty of courts to see that the rights of the detenue/citizens are not violated with impunity by the

respondent/State and that is why that the courts are anxious that whenever order of detention is passed, the same must be implemented on the

detenue forthwith without loosing any further time. Since this court has already held that delay in execution of detention order without tendering any

explanation or reasons therefor is fatal to the very detention order and on this count alone number of writ petitions have been allowed and this case

cannot be exception.

The averments made in the grounds of challenge are belied by the respondents in the counter affidavit. The case of the detenue has been

referred to the Advisory Board on 4.8.1992 and the Advisory Board after hearing the detenue in person has opined in favour of continued

detention of the detenue vide its opinion dated 7.10.1992. However, after the opinion of the Board was received by the Government it confirmed

the order of detention vide Government order No: Home/ Hsd/1505A of 1992 dated 25.11.1992 i.e. after morethan three months from the date

of detention of the detenue which is the mandate of law as laid down by this court in number of judgments and supported by AIR 1972 SC 1356

and 1972 SC 1446, wherein it has been held that the Government is obliged to confirm the order of detention within three months from the date of

detention of the detenue. On this count also, the order of detention is vitiated.

For the foregoing reasons, the order of detention bearing No: PSA/DMS/392/ 91 dated 19.3.1992 is held to be illegal and unconstitutional and

cannot and it is directed that the detenue be released forthwith unless otherwise required in any substantive offence. The petition is disposed of

accordingly.