Shabir Ahmad Shah vs State and Others

Mohd. Yaqoob Mir, J.—Detenue Shabir Ahmad Shah presently lodged in District Jail, Kathua pursuant to detention order No.

DMS/PSA/73/2009 dated 9.2.2010 is stated to be suffering from various ailments. In support whereof, number of prescriptions are available on

the record.

The respect to the liberty is precious and is constitutionally guaranteed and at the same time what should be respect to the life is quite

understandable.

It is vehemently projected that the ailments of the detenue are such which may likely have adverse impact on his life. Specialized treatment is

imperative and is bounden duty of the authorities concerned to extend the same to the detenue.

The shifting of the detenue from District Jail, Kathua to Central Jail, Kathua is not only sought on the count of ailments of the detenue but also on

the count of principle as has been laid down by the Constitutional Bench of the Hon'ble Apex Court while rendering the judgment captioned A.K.

Roy and Others Vs. Union of India (UOI) and Others,

It is settled that as a matter of rule, detenue has to be kept in detention in a place which is within the environs of his ordinary place of residence.

The departure is permissible when requirements of administrative inconvenience, safety and security may justify. In case of departure from the

normal rule, it is the bounden responsibility of the detaining authority to indicate in his records or in the order of detention that there is a justified

requirement in the interests of administration, security or safety for lodging the detenue in a jail at a place other than one located near his or her

ordinary place of residence. In the order of detention or the grounds of detention there is not even a whisper so as to indicate the compulsion for

lodging the detenue outside the Valley.

Though in terms of order dated 23.2.2010 objections have been filed so as to justify the detention of the detenue in District Jail, Kathua but on

bird's eye view the objections are such which in its particulars do not justify the lodging of the detenue outside the Valley. The objections so filed in

a general form are without any substance i.e. it is a general averment that Central Jail, Srinagar is overcrowded besides there are hardcore

militants, so in presence of hardcore militants it shall not be safe to lodge the detenue in Central Jail, Srinagar.

This general form allegation has been specifically repelled by the learned Counsel for the Petitioner by highlighting that till date number of

detention orders have been passed pursuant to which detenue has been lodged in Central Jail, Srinagar. Those detention orders either stand

revoked or quashed. Additionally it is not indicated what is the number of such militants or what is the number of the inmates in Central Jail,

Srinagar. Further to say that climatic conditions in Kathua are warm, is no substitute for the environs as are available to a person vis-a-vis the place

where he resides.

Learned Counsel for the Respondents would contend that the place of detention has to be at the choice of the government as is permissible u/s

10(b) of the Jammu and Kashmir Public Safety Act. In support of this submission, learned Counsel has relied on the judgment captioned Mrs

Geetinder Kaur Vs. State of Punjab and Others, .

It shall be quite apt to quote relevant portion of para 3 of the reported judgment as to what has been held:

While it is ordinarily desirable that a detenue should be detained in an environment natural to him in point of climate, language, food and other

incidents of living, in the actual decision concerning the place of detention, these considerations must yield to factors related to and necessitated by

the need for placing him in preventive detention. While we maintain that the conditions imposed upon a detenue held in preventive detention must

not be punitive, they must nevertheless be such as to secure the effectiveness of his incarceration.

The place of detention is a matter for the administrative choice of the detaining authority, and a Court would be justified in interfering with that

decision only if it was in violation of any specific provision of the law or was vitiated by arbitrary considerations and malafides.

This position has been taken note of by the Division Bench of this Court in the judgment State of J&K and Ors. v. Syed Asiya Andrabi while

disposing of CMP No.219/2009.

The law and principle laid down by the Hon'ble apex Court in the constitutional judgment in A.K. Roy's case is a sufficient answer to the

submission of learned Counsel for the Respondents. It shall be quite relevant to quote relevant portion of para 74 and 75:

74....Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and

relatives to meet him or for the detenue to claim the advantage of facilities like having his own food. The requirements of the administrative

convenience, safety and security may justify in a given case the transfer of a detenue to a place other than that where he ordinarily resides, but that

can only be by way of an exception and not as a matter of general rule. Even when a detenue is required to be kept in or transferred to a place

which is other than his usual place of residence, he ought not to be sent to any far off place which, by the very reason of its distance, is likely to

deprive him of the facilities to which he is entitled. Whatever smacks of punishment must be scrupulously avoided in matters of preventive

detention.

75....In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and

reasonableness, we consider it imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of

his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that

the detenue has been taken in custody. Intimation must also be given as to the place of detention, including the place where the detenue is

transferred from time to time. This Court has stated time and again that the person who is taken in custody does not forfeit, by reasons or his

arrest, all and every one of his fundamental rights. It is, therefore, necessary to treat the detenue consistently with human dignity and civilized norms

of behaviour.

The deviation to the principle as has been laid down by the Hon'ble Apex Court is impermissible. In the instant case deviation by ordering

detention of the detenue in a place which is not within the environs of his ordinary place of residence and a place where it shall be absolutely

difficult for his family members and relatives to facilitate meetings as well as for providing food and other things, more particularly when the detenue

admittedly is suffering from various ailments. It was for the detaining authority, while passing the order of detention, to carve out a case which

would constitute exception to the general rule of keeping the detenue in detention at a place other than the ordinary place of his residence.

In view the afore-stated position of the matter and the law as has been laid down, keeping the detenue in District Jail, Kathua any more is

unwarranted so shall be immediately shifted to Central Jail, Srinagar. Additionally Superintendent Central Jail, Srinagar shall ensure that all medical

facilities as shall be required for treating the ailments of the detenue are provided to him to the extent of required limits.

Copy of the order be sent to the Respondents including Superintendent, Central Jail, Srinagar so as to ensure complete compliance.

Application shall accordingly stand disposed of.