Jammu & Kashmir High Court - Srinagar Bench
Reserved On 03.06.202 vs Ut Of J&K And Ors on 28 June, 2021
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
{WP (Crl) No.189/2020}
Reserved on 03.06.2020
Pronounced on 28.06.2021
Assadullah Bhat
...Petitioner/detenu
Through: Mr. Z.A Qureshi, sr. adv
With Ms. Rehana, adv.
vs.
UT of J&K and ors
...Respondents
Through : Mr. Mir Suhail, AAG
Coram:Hon'ble Mr. Justice Ali Mohammad Magrey.
Judgment
1. Impugned in this Heabus Corpus petition with a prayer for quashment
thereof is the detention order no. 35/DMP/PSA/20 dated 02.11.2020,
purporting to have been passed by District Magistrate Pulwama,
whereunder detenu namely Assadullah Bhat s/o Ghulam Mohammad
Bhat R/o Dadsara at present Chattabal Srinagar Tehsil Tral, District
Pulwama, is under detention.
2. Grounds pleaded in support of prayer are that respondent no. 2 has issued
the detention order dated 02.11.2020 on the basis of grounds placed
before him by the concerned SSP, as the grounds of detention are ditto
copy of the dossier. It is submitted that the detaining authority has not
applied its mind while passing the detention order. It is submitted that the
there is total non-application of mind while passing the impugned order of
detention as the detenu was already under custody when the detention
order was passed. It is submitted that the authority has not explained the
grounds to the detenu in the language which he understands. It is
submitted that no copy of translated version was furnished to the detenu
to enable him to make an effective representation against the detention
order, which renders the detention order liable to be set aside.
3. In his counter affidavit, respondent no.2 has stated that the detenu's
activities being highly prejudicial to the sovereignty and security of the
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State, his detention was necessary to prevent him from indulging in such
acts, which was also approved by the Government and the State Advisory
Board constituted u/s 14 of P.S. Act. During course of his submissions the
respondents counsel besides reiterating the contents of counter affidavit
has contended that in circumstances of the case the impugned detention is
well founded in fact and law.
4. I have heard learned counsel and considered the matter and perused the
recors. As per pleadings and contentions raised at bar the main ground of
attack projected by petitioner against the detention in question is, that
grounds of detention were not duly communicated to him, which
prevented him from making an effective representation against the same
and thereby he was deprived of an important constitutional right, and that
the detaining authority did not apply his mind while passing the detention
order and has not revealed as to on what materials he assumed subjective
satisfaction regarding necessity of having the subject detained when the
detenu have not filed any bail application in any court for his release in the
FIR(s) registered against him.
5. So far as the ground taken i.e non communication of the grounds of
detention is concerned, perusal of file reveals, that there is nothing to
show or suggest that the grounds of detention couched in English language
were explained to the detenu in a language understood by him, as there is
no material to that effect on record. This according to the view taken by
Hon'ble Apex Court in "LallubhaiJogibhai Patel v. Union of India, (1981) 2
SCC 427"; the detenu did not know English, while the grounds of detention
were drawn up in English and an affidavit filed on behalf of the detaining
authority stated that while serving the grounds of detention were fully
explained to the detenu, but the Apex Court held that, was not a sufficient
compliance with the mandate of Article 22(5) which requires that the
grounds of detention must be communicated to the detenu. The Apex
Court observed as under:
"Communicate' is a strong word which means that sufficient
knowledge of the basic facts constituting the 'grounds' should be
imparted effectively and fully to the detenu in writing in a language which
he understands. The whole purpose of communicating the 'grounds' to
the detenu is to enable him to make a purposeful and effective
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representation. If the 'grounds' are only verbally explained to the detenu
and nothing in writing is left with him in a language which he
understands, then that purpose is not served, and the constitutional
mandate in Article 22(5) is infringed."
6. In view of the law laid down by the Apex Court in case titled
LallubhaiJogibhai Patel v. Union of India (supra) vitiates the detention
order, as not amounting to effect communication of grounds, and resultant
deprivation of the right to make representation against the same.
7. That being so the grounds of challenge set up by petitioner, succeed and
the detention stands vitiated. Other grounds urged do not therefore, need
to be separately addressed.
8. The petition is accordingly, allowed and detention order no.
35/DMP/PSA/20 dated 02.11.2020 purporting to have been passed by
District Magistrate Pulwama, under which the detenu namelyAssadullah
Bhat s/o Ghulam Mohammad Bhat R/o Dadsara at present Chattabal
Srinagar Tehsil Tral, District Pulwamais under detention, is quashed with
direction for his release forthwith.
9. The petition stands accordingly disposed of. No order as to the costs.
10. Registrar Judicial to send a copy of this order to Director General of Prisons
and also concerned Jail authorities for compliance.
(Ali Mohammad Magrey )
Judge
Srinagar
28.06.2021
S.A Hussain,
Secretary
i)Whether the order is speaking: Yes/No.
ii)Whether the order is reportable : Yes/No
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SYED AYAZ HUSSAIN
2021.06.28 11:35
I attest to the accuracy and
integrity of this document
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