JEHANGIR AHMAD KHAN Vs. STATE OF J&K

JUDGEMENT

(1.) HAVING been detained under the provisions of the Public Safety Act by the District Magistrate Baramulla, the detenue has invoked the extraordinary writ jurisdiction of the Court. It transpires from the order of detention that the detenue stands booked for substantive Offences. His detention appears to have come into being on the apprehension of likelihood of his release on bail though the offences are henious and it is not so easy for him to get the bail. Placing reliance on Amrit Lal and Ors. v. Union Government (2001) 1 SCC page 341, it is submitted by learned counsel for the petitioner that the order of detention is liable to be quashed because there is no material even worth the name which would substantiate aforementioned apprehension.

(2.) IT is next contended that statute confers a right of representation upon a detenue against an order of detention which can be availed of only if a copy of grounds is furnished to him in the language he understands. It is further contended that admittedly the detenue is an illiterate and knows no language other than Kashmiri whereas detaining authority has gone on record to say that grounds of detention were served upon him in english language same being Greek to him he is prevented from making a representation against the order of detention in violation of statute and constitution. Responding to the contention Mr. G. Mustafa, learned Government Advocate has pressed into service a judgment of the Division, Bench passed in LPA No. 57/2001 titled Rustum Want v. State of J&K; and Ors. contending that supply of translated copy cannot vitiate the order of detention. Controverting the contention the learned counsel for the petitioner has placed reliance on judicial pronouncements handed down by the Constitution Bench of the apex Court in Handibandhu Das v. District Magistrate Cuttack AIR 1969 SC 43 para 6 at page 4 and Razia v. Union of India reported in AIR 1980 SC 1751 at 1752 to canvass that failure of the respondents to furnish copies of grounds of detention in the language he understands is an utter violation of the constitutional safeguards guaranteed to a citizen under article 22(5) of the Constitution, and fall out of such omission is vitiating the order of detention.

(3.) HOW far argument of delayed execution helps the detenue needs to be appreciated in the light of the relevant events date -wise. The detenue surrendered before the Inspector General of B.S.F. on 27.02.2001 and having continued in the jail custody for about a year the order of detention came to be passed on 22.01.2002 and admittedly at that point of time he was at Baramulla under judicial custody. In this behalf it is contended that distance from the office of District Magistrate, Baramulla and Police Station, Baramulla is hardly one km and nothing prevented the detaining authority to execute the order of detention on the same day but its execution was delayed till 12.02.2002 apparently for a period of twenty days. The delayed execution is not disputed. Settled law is that if the detaining authority explains the reasons for non -execution to the satisfaction of the Court, the delay cannot be fatal to the order of detention but fact of the matter is that no explanation even worth the name has come forward either from the record of the detaining authority or from the counter filed by the respondents which would explain the non -execution of the order with promptitude and in absence of an explanation much less satisfactory one, twenty days delay by no stretch of imagination can be held to be reasonable in the facts and circumstances of this case. Thus what emerges is that delay has gone unexplained. Consequence of failure to explain the delay need no elaboration in view of the abovesaid judgments which squarely cover the case on hand leaving no option for the Court but to quash the impugned order of detention.