HUSSAM UD DIN AHMAD Vs. STATE

JUDGEMENT

(1.) ORDER :- A letter was written by one of the detenus Hussam-ud-din Ahmad to the Chief Justice of this Court who was himself a detenu in District Jail, Kathua. In his letter to the Chief Justice, Hussam-ud-din Ahmad had stated that a teen aged boy Shabir Ahmad Bhat S/o Abdullah Bhat R/o Satras Maidan Tehsil and District Anantnag was brought by Police and lodged in Central Jail Kathua. The letter was listed before me and it was treated as a Habeas Corpus Writ Petition. Mr. Kappor AAG was directed to file affidavits. On various occasions the detenu was presented in this Court and prima facie the Court was of the opinion after examining the detenu and getting him examined by Senior Advocates of this Court, that he was not pshychiatrically fit. Eventually, he was referred to the Government Medical College, Jammu where he is under treatment in the Psychiatry Hospital. The Doctors have not given their final report as yet. By a separate order they have been asked to give the final report.

(2.) The respondents have filed their counter and stated that the detenu is under detention in pursuance of the District Magistrate Anantnag's Order No. F-20/LIT/DET/PSA/DMA/JC/95/1453-59 dated 20-10-1995. Copy of the grounds of detention has also been placed on record by the respondents.

(3.) I have heard learned counsel for the parties. In the grounds of detention, the respondents have submitted "On 6-8-1995 you along with Mukhtiar Ahmed (co-accused) and Syed Ghulam Hussain Shah were apprehended by the local police. You were arrested in case FIR No. 65/95 Police Station Thana Mandi Rajouri on 7-8-1995 and are in custody. There are chances of your release on bail. In case of your release on bail you will prove to be potential threat to the security of the State". Mr. Malik appearing for the detenue has invited my attention to the judgement of the Supreme Court reported in AIR 1988 SC 934 : (1988 Cri LJ 951) wherein it has been held that when a person is already in custody, it is not sufficient to mention that the person is being detained because he may get released on bail. The detaining authority has to give compelling reasons for passing a detention order against a person who is already in custody. Since no compelling reasons have been given by the detaining authority, therefore the order cannot sustain in the present case. It appears from the copies of the detention order which have been annexed with the affidavits that although the order was passed on 20-10-1995 it was received by the Superintendent, District Jail Kathua on 15-1-1996. Although no date has been given as to when the order of detention was executed, yet it can be safely said that it had not been executed till 15-1-1996. There is no explanation for delayed execution of the detention order, which also makes the detention order liable for quashment.