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1999 Supreme(J&K) 97
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
G.L. Raina,Syed Bashir-ud-Din, JJ.
Naseer Ahmad Sheikh - Appellant
Versus
Addl. Chief Secretary Home & Anr. - Respondent
LPA No. 96/1998
Decided On : 02 April, 1999
The grounds of detention must be communicated to the detenue within the time frame prescribed under Section 13 of the Act, in a language which he understands, and immediately after the date of execution of the order.
Headnote:
PUBLIC SAFETY ACT - PREVENTIVE DETENTION - SECTION 13 - DETENTION ORDER - GROUNDS OF DETENTION - COMMUNICATION - TIME FRAME - SECTION 13 OF THE ACT - INTERPRETATION - DETENTION ORDER PASSED AGAINST A PERSON ALREADY IN CUSTODY - GROUNDS OF DETENTION MUST SHOW COMPELLING REASONS JUSTIFYING SUCH DETENTION - DETENTION ORDER MUST BE COMMUNICATED TO THE DETENUE WITHIN THE TIME FRAME PRESCRIBED UNDER SECTION 13 OF THE ACT - FAILURE TO COMMUNICATE THE GROUNDS OF DETENTION WITHIN THE PRESCRIBED TIME FRAME RENDERS THE DETENTION ORDER INVALID - DETENTION ORDER PASSED AGAINST A PERSON ALREADY IN CUSTODY - GROUNDS OF DETENTION MUST BE COMMUNICATED TO THE DETENUE IN A LANGUAGE WHICH HE UNDERSTANDS - FAILURE TO COMMUNICATE THE GROUNDS OF DETENTION IN A LANGUAGE WHICH THE DETENUE UNDERSTANDS RENDERS THE DETENTION ORDER INVALID - DETENTION ORDER PASSED AGAINST A PERSON ALREADY IN CUSTODY - GROUNDS OF DETENTION MUST BE COMMUNICATED TO THE DETENUE IMMEDIATELY AFTER THE DATE OF EXECUTION OF THE ORDER - FAILURE TO COMMUNICATE THE GROUNDS OF DETENTION IMMEDIATELY AFTER THE DATE OF EXECUTION OF THE ORDER RENDERS THE DETENTION ORDER INVALID.
Fact of the Case:
The detenue, Naseer Ahmad Sheikh, was arrested on 9-5-1997 for the offenses under section 10 CLA Police Station M.R. Gunj Srinagar. The District Magistrate issued a detention order under the Public Safety Act on 9-6-1997, detaining the detenue for twenty-four months. The detenue challenged the detention order in a habeas corpus petition, contending that the order was invalid as it suffered from the infirmity of lack of application of mind by the detaining authority, that the procedural safeguards and the constitutional guarantees, qua the preventive detention, having been observed in breach, rendered the order of detention invalid, and that the grounds of detention were couched in the language that was not understood by the detenue and no translation/transcript thereof having been provided to him in the language which he could understand, prevented him from making any representation against the order.
Finding of the Court:
The court held that the detention order was invalid on the following grounds: (i) The detaining authority did not apply its mind to the material placed before it while passing the impugned order and thereby the order has become invalid. (ii) The grounds of detention were not communicated to the detenue within the time frame prescribed under Section 13 of the Act. (iii) The grounds of detention were not communicated to the detenue in a language which he understood. (iv) The grounds of detention were not communicated to the detenue immediately after the date of execution of the order.
Issues: 1. Whether the detaining authority applied its mind to the material placed before it while passing the impugned order? 2. Whether the grounds of detention were communicated to the detenue within the time frame prescribed under Section 13 of the Act? 3. Whether the grounds of detention were communicated to the detenue in a language which he understood? 4. Whether the grounds of detention were communicated to the detenue immediately after the date of execution of the order?
Ratio Decidendi: 1. The detaining authority must disclose in the grounds of detention the reasons for satisfaction as to the likelihood of the detenue, already in custody, being released therefrom and his likely to resort to the prejudicial activities after such release. 2. The communication of the grounds of detention must immediately follow the date when the detention order is executed or presumed to be executed. 3. The grounds of detention have to be communicated to the detenue in terms of section 13 of the Act so as to enable him to make a representation against the detention order. 4. The denial of the right by non-communication of the grounds in the language which he understands leads to the deprivation of the detenue’s right to make the representation which is guaranteed under the constitutional provisions.
Final Decision: The court allowed the appeal, set-aside the order of the learned judge and quashed the detention order as being invalid, with the direction to the respondents to set free the detenue forthwith if not detained for any other substantive offence(s).
1. This letters patent Appeal is directed against the order dated : 7-4-1998 rendered by the learned single Judge of this court in Habeas Corpus Petition no. 520of 1997.
2. The factual matrix where-from the impugned judgment stemmed needs a notice.
3. Detenue Naseer Ahmad Sheikh son of Abdul Aziz Sheikh resident of Nowhatta, Malik Sahib, Srinagar got arrested on 9-5-1997 in FIR No. 68 of 1997 for the offenses under section 10 CLA Police Station M.R. Gunj Srinagar as it was alleged that he had resorted to such prejudicial activities, prior to his arrest, as endangered the security of the State in as much as he had fired in June 1993 on the security forces banker at Bohrikadal, Srinagar and yet again resorted to firing on patrol vehicle of the security forces at Nowhatta in 1994. It is said he along with other associates resorted to an armed attack on a congress leader at Muniwar, Srinagar 1995
4. It was on these prejudicial activities that the District Magistrate having noted that the detenue was already in custody, issued the order of detention under his no. DMS/PSA/90/97 dated: 9-6-1997, whereby detenue™s preventive detention for twenty four mouths came to be ordered.
5. The detention order came to be challenged in the habeas corpus petition (supra) on the grounds that it suffered from the infirmity of lack of application of mind by the detaining authority as the detenue being already in custody, no reason or grounds were spelt out to clamp preventive detention; that the procedural safeguards and the constitutional guarantees, qua the preventive detention, having been observed in breach, rendered the order of detention invalid; that the grounds of detention were couched in the language that was not understood by the detenue and no translation/transcript thereof having been provided to him in the language which he could understand, prevented him from making any representation against the order.
6. The learned single judge repelled the contentions and held that no ground was made out to quash the detention order.
7. The matter of the facts is that the detenue was arrested on 9-5-1997 for the substantive offense as he was booked in FIR NO.68 of 1997 P/S M.R. Gunj, Srinagar. The detaining authority did disclose his awareness of this fact in the grounds of detention, but surprisingly neither in the grounds nor in the order did the detaining authority spell out these compelling reasons or the circumstances which prompted him to clamp preventive detention on the detenue notwithstanding that he had already been, by his detention for substantive offence, prevented from acting in any manner prejudicial to the security of the state. This aspect appears to have been high-lighted before the learned Single Judge. The learned Single Judge while relying on the observations made in Surya-Prakesh Sharms™s case (1995 AIR SCW 1841), came to hold that the ratio of the judgment was that the detaining authority must be aware of the fact that the detenue is already in custody at the time of making the order of detention and cogent grounds must support the order of detention that if released on bail, he may again indulge in the activities attributed to him. We do agree with the view of the learned judge that an order of detention can bee passed against a person who is already in custody and that the detaining authority must disclose the awareness of such custody in the order but the ratio of Surya Prakash Sharmas case, supra, is not only that the awareness of pre-existing custody must be disclosed by the detaining authority, but it further requires that the grounds of detention must show that there are compelling reasons justifying such detention despite the fact the detenue is already in detention. The compelling reasons have been explained to mean in the context of making the order of detention of a person already in custody that there must be cogent material before the detaining authority on the basis of which it may be satisfied that the d
