Wali Mohammad Lone vs State

By this common judegment, I propose to dispose of the above titled habeas corpus petitions, whereunder detention of detenues Wali Mohammad Lone S/O Abdul Gani Lone R/O Dadasun, Kupwara. Mohammad Yosuf Khan S/O Ghulam Qadir Khan R/O Bandipora, Kralapora Kupwara, Mohammad Afzal Lone S/O Mohammad Sadiq Lone R/O Bandnumbal, Chowkibal Kupwara and Barkat Ali Khan S/O Mohammad Abdullah Khan R/O Haknatpora, Kupwara are being challenged. The detenues are alleged to have been arrested by the security forces and subsequently detained in pursuance of detention order Nos 102/DMK/ PSA dated 30101995, No. 76 of DMK/PSA dated 18101995, No. 127 of DMK/PSA dated 30101995 and order No.' 100 of DMK/PSA dated 30101995.

Petitioners have challenged the detention of the detenues on all the legal, factual, constitutional pleas [SIC] available in such petitions.

Rule nisi has been issued. Respondents have appeared and filed their counter affidavit. The matter has come up today for arguments.

Heard learned counsel for the parties at length and perused the files.

Ld. counsel for the petitioners besides projecting other grounds of challenge have laid emphasis on two main grounds;

Firstly that the grounds of detention have been readover and explained to the detenues in Kashmiri and Urdu languages which they understand and that they were apprised of the right of making representation available to them against such orders of detention. The issue has been joined that there Ls nothing on record to suggest that the grounds of detention were explained to the detenue in Kashmiri language or the person who has readover these grounds of detention, have not filed any affidavits to that effect.

On the other hand, Mr. Riyaz appearing for the respondents has shown the records wherein it is shown that the grounds of detention were explained to the detenue in Urdu as well as in Kashmiri languages by Superintendent of Jail concerned, but Mr. Khan does not disclose the names of the Superintendent of Jails concerned as records to that effect are not available with him. However, the fact remains that there is no affidavit on record in the case filed by the concerned Superintendent of Jail evidencing this fact that he was the person who had explained the grounds of detention to the detenues in Urdu/ Kashmiri languages which was duly understood by the person of the detenue and that they apprised the detenues of the right of making representation against their detention. So the argument projected by Ld. counsel for the petitioners prevail.

The second argument raised by learned counsel for the petitioners is that the grounds of detention disclose nonapplication of mind of the detaining authority. The grounds of detention show at the concluding paras as under:

........From the facts stated above, it is clear that you indulge in subversive and antinational activities and the ordinary law of the land.....As such your detention under the provisions of the J&K Public Safety Act has become imperative.

Mr. Ronga learned counsel for the petitioners while developing on the argument has submitted that under the provisions of Section 8 of the J&K Public Safety Act, the detaining authority is empowered to detain a person, if he is satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the:

Security of the State or the maintenance of Public order etc. etc.

So the emphasis laid by learned counsel for the petitioners is that the detaining authority can nodoubt pass an order under the provisions of the J&K Public Safety Act against a person, in case the authority is satisfied with regard to any person and that with a view to prevent him from acting in any manner prejudicial to the security of the State or maintenance of public order. It is not for the Antinational activities that a person can be detained under the provisions of the Public Safety Act. The District Magistrate, Kupwara has shown his total nonapplication of mind when he qualifies that the detention of the detenue has become imperative because of the fact that the individual/ detenue is indulging in subversive and antinational activities and it is not sufficient to deter him from subversive and antinational activities. So it is on that count that the detaining authority has concluded that to prevent the detenue from acting in antinational activities, that he is being detained, which is neither the purport of law nor is envisaged by the State.

Mr. Ronga submits that here in the cases in hand, there is total nonapplication of mind on the part of the detaining authority which is writ large from the very grounds of detention. The order of detention, as such, cannot stand judicial scrutiny.

Mr. Khan on the other hand submits that the grounds of detention are not to be taken in isolation but are to be read as a whole and wants indulgence of this court that while concluding the grounds of detention, the detaining authority had made reference of the other facts which are figuring in the grounds of detention. The argument advanced by Mr. Khan is not plausible , in so far as the facts show narration of the incidents, how those facts have been appreciated and how it has culminated in snowing imperativeness of the passing of the detention order as shown in the concluding para. In the concluding para, the detaining authority has concluded and given top priority to the "antinational activities". So the contention raised by learned counsel for the petitioners is plausible. So the order of detention passed by the detaining authority on this count is not in accordance with law and cannot stand judicial scrutiny.

13.For the foregoing reasons, the petitions referred to above are allowed and the orders of detention impugned therein are quashed. Let a writ of mandamus go to the respondents commanding them to release the detenues forthwith, unless otherwise required in any substantive offence. Files be consigned to records. Registry shall place copy of judgment on each file.