SARA BONO Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) By medium of this petition, the detention of Abdul Majid Malik u/s 8 of the J & K Public Safety Act, hereinafter referred to as Act, has been challenged inter alia on the followillg grounds: i) That the grounds of detention have been communicated vide Annexure P-i to the detenue beyond the statutory period, as provided by J & K P.S.A, as the same were handedover in the first week of August 1991, as such, the detention of the detenue is bad in law and is liable to be set aside. ii) That no order of detention has been served upon the detenue or upon the petitioner so far, alongwith grounds of detention, as such, the detenue has been detained illegally without any proper authority, of law. Moreover serving of grounds of detention docs not absolved the detaining authority from duty of passing an order of detention after coming to the conclusion that the detention of the detenue is necessary, as such, the detention of the detenue is bad and he is liable to be set at liberty. iii) That the detention made by the respondent has not been approved by the Govt. as required in sub clause 4 of Section 8 of the Public Safety Act, as such, also the detention is bad and is liable to be quashed. iv) That the respondent has not placed before the Adviscry Board constituted under Section 14 of the Act, the alleged detention case of the petitioner alongwith the grounds of detention and the representation made by the detenue alongwith the report of the District Magistrate, though it was obligatory upon state to do it within four weeks of the detention. As such, also detention is bad and is liable to be quashed. v) That the Advisory Board has not also submitted any report to the Govt. within the statutory period of the detention of the detenue, as such, also the non compliance of the mandatory provisions of law has made the detention of the detenue liable to be quashed. vi) That the detenue has not been explained the grounds of detention in Kashmiri/Urdu language which he understands when same is in English, which he docs not understand nor any translation has been provided of the same in Kashmiri/Urdu Language. The detenue therefore, has been deprived of making an effective representation against his detention. There is patent violation of the Article 22 of the constitution of India as such, detention is bad. vii) That the detaining authority has come to the conclusion regarding detention of detenue on the basis of some material which he had mentioned in the first para of the grounds of detention, that the detenue is associated with a particular organisation. He must have received some material /information on the basis of which he must have come to the conclusion that the detenue is having alleged association with such organisation, but no such material/information has been disclosed in the grounds of detention, as such, also the detention is illegal and unconstitutional: viii) That the order of detention has not been so far served upon the detenue nor upon the parents of the detenue including the petitioner and the grounds of detention given to the detenue have been served beyond 10 days as contemplate under section 13 of the J & K Safety Act, as such, respondent has committed breach of the said section, thereby the detention itself has become void and liable to be quashed. Despite ample opportunities granted to the respondents they have failed to file any counter in this case. Despite specified directions to produce the detention record, the same has not been produced for the perusal of the case. The result of the nonfiling of the counter would be that the allegations made in petition on an affidavit having remained unrebutted are to be taken as correct. Now the main grounds taken in the petition for challenging the detention order are discussed below: (1) Allegedly the order of detention was not furnished to the detenue and the grounds of detention were given to him beyond the stipulated period as provided in the Act. As no counter has been filed by the respondents these allegations have remained unrebutted. The record too has nor been produced to as certain the actual position.

(2.) The question is if the order of detention is not furnished to the detenue, how could he know the date when such order was passed or the term for which he is to be detained or for that matter of his right to make a representation against his detention. Non-supply of order of detention has definitely prejudiced the detenue in many ways. This has also deprived him of his constitutional right to make a representation against his detention. Similarly, the grounds of detention are to be provided to the detenue within five days after his detention or within ten days, if for the recorded reasons it could not be done within five days. This is a mandatory provision and its violation vitiates the very detention order. For these reasons alone the order of detention is liable to be quashed.

(3.) Allegedly the order of detention has not been approved by the Govt. as required in Subclause (4) of Section 8 of the Act. It is provided therein that if the order of detention is made by the Division Commissioner or the District Magistrate, it is to be confirmed by the Govt. with the 12 days. As the counter has not been filed and the record not produced, the court has therefore to presume that the order of detention was not confirmed by the Govt. within the stipulated period of 12 days. Under the Act, unless the Govt. confirms the order of detention passed by the District Magistrate within 12 days, it ceases to operate and outlives its life. For this reasons also the order of detention is liable to be quashed.