Jammu & Kashmir High Court - Srinagar Bench
Reserved On 13.09.202 vs Ut Of J&K And Anr on 3 November, 2021
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
{WP (Crl) No. 80/2021}
Reserved on 13.09.2021
Pronounced on 03.11.2021
Mohammad Illiyass Sheikh
...Petitioner/detenu
Through: Mr. G.N Shaheen, adv.
vs.
UT of J&K and anr
...Respondents
Through : Ms. Asifa padroo, 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. 01/DMK/PSA/2021 dated 19.04.2021,
purporting to have been passed by District Magistrate Kulgam, whereunder
detenu namely Mohd Illiyass Sheikh s/o Gh. Hassan Sheikh R/o Rampora
Tehsil Qaimoh, District Kulgam, is under detention.
2. Grounds pleaded in support of prayer are that respondent no. 2 has issued
the detention order dated 19.04.2021 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 security of the State, his detention
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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. 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 was already facing trial in
various FIRs.
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
representation. If the 'grounds' are only verbally explained to the detenu
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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.
01/DMK/PSA/2021 dated 19.04.2021 purporting to have been passed by
District Magistrate Kulgam, under which the detenu namely Mohd Illiyass
Sheikh s/o Gh. Hassan Sheikh R/o Rampora, Tehsil Qaimoh, District Kulgam,
is 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 Judgment/order to Director General
of Prisons and also concerned Jail authorities for compliance.
Disposed of.
(Ali Mohammad Magrey )
Judge
Srinagar
03.11.2021
S.A Hussain,
Secretary
i)Whether the order is speaking: Yes/No.
ii)Whether the order is reportable : Yes/No
SYED AYAZ HUSSAIN
2021.11.03 11:36
I attest to the accuracy and
integrity of this document
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