MOHD JAMAL SHAH Vs. STATE

JUDGEMENT

(1.) SUBJECT Mohammad jamal Shah has been detained by District Magistrate, Srinagar under Order No.DMS/PSA/179/ 98 dated 13 -1 -1999, when detenue was already in custody in FIR No.246/98 under section 7/25 I.A.Act registered at Police Station Soura, Srinagar. This order of the detention was executed and said Mohammad Jamal Shah was taken in preventive detention from punitive detention on 12 -12 -2000. The detention order as also consequent detention is challenged on number of grounds. However, the Ld. counsel for petitioner confines his submissions to the following grounds: - First, that the order of detention has been executed after about 23 months and no explanation or reasons whatsoever is given for such inordinate delayed execution which renders the detention itself illusory, not to serve the purpose for which order has been passed. Second, that the grounds as also material referred in the grounds has not been supplied to the detenu, an illiterate who he is not even informed of his right to make representation. Thereby, while the order is not communicated he is prejudiced to make representation against the detention to the Government. Counter has been filed. The learned counsel for respondents Mr. Ghulam Mustaffa, GA. has also produced detention file and is candid enough to concede that no reason whatsoever is on record to furnish an explanation for inordinate delay in execution of the order after lapse of 23 months. The counsel further goes to submit that the grounds as also the order of detention has been supplied to the detenue who has been explained same in the language which he understands. Therefore, the question of prejudice does not arise. He has been communicated the order and the detention and same is in order on this count.

(2.) WHILE taking a closer look of the matter and on consideration of the submissions of the counsel for the parties, it emerges from record and submissions, that admittedly the detainee Mohammad Jamal Shah was in punitive detention in FIR 246/96 under section 7/25 I.A. Act, registered at Police Station Soura, from 25 -10 -98. He continued so even when the detention order in question was passed on 13 -1 -1999. this detention order was executed and detenue taken in preventive detention only 12 -12 -2000. No explanation or reasons are given for not implementing the order during the intervening about 23 months. Contextually, perusal of grounds would reveal that first and second ground is relatable to detenues anticidents and militancy background, while as third and fourth paragraphs are confined to FIR 246/98, of Police Station Soura (Ibid) and recovery of Arms and Ammunition and the last para says that the detenues activities are highly prejudicial to the security of the State which warrants detenues detention under the J&K Public Safety Act. Obviously, the live and proximate link between the grounds and purpose of detention is snapped by passage of intervening long time period. The order cannot be said to be subsisting and live after such a long period when even the total period for detention of such a detenue under Jammu and Kashmir Public Safety Act is not more than two years. The detention order on this count is vitiated.

(3.) IN K P.M.Basheer Vs. State of Karnatka and Anr. (AIR 1992 SC 1353) it is observed: - " ¦Under these circumstances, we are of the view that the order of detention cannot be sustained since the live and proximate link between the grounds and purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/ detenue and detaining him.."