Point of Law: Detention – Grounds of detention - Order of bail obtained by appellant/detenu in FIR – Yet detention order could still be sustained on other grounds which found mention in the grounds of detention

JUDGMENT :

1. The instant Letters Patent Appeal (LPA) has been preferred against the judgment and order dated 10th September, 2020, whereby the petition, challenging the order of detention dated 4th July 2019, has been dismissed.

2. Briefly stated, the detailed facts are as under.

3. That the District Magistrate, Kulgam, in exercise of powers vested in him under Section 8 (A) of the Jammu and Kashmir Public Safety Act, 1978, (for short “Act”) ordered the detention of Mohammad Abass Bhat S/o Ghulam Mohammad Bhat R/o Arreh, District Kulgam, the appellant herein, with a view to prevent him from acting in any manner prejudicial to the sovereignty and security of the State.

4. The allegations as emerge from the grounds of detention are that the appellant was a member of Harkat-ul-Mujahideen terrorist outfit since 2002 and was an over ground worker for the said terrorist outfit. The appellant is stated to have been apprehended by the security forces in Surankoot Poonch, while attempting to cross the Line of Actual Control (LoC) for obtaining illegal arms training but was released after sometime.

It was alleged that the appellant/detenu started a normal life for livelihood but started working yet again for the banned terrorist organization by way of providing logistic support for carrying their illegal activities. The appellant is also said to have been providing support for management and distribution of funds, identification of sympathizers and their motivation to work for terrorists.

It is further alleged that the appellant was involved in FIR No. 177/2018, Under Section 364, 302, 120-B, RPC, 13, 16, 18, 19, 39 ULA (P) Act, 7/27 Arms Act, registered with Police Station Kulgam.

It is also alleged that one Sheeraz Ahmad Bhat had been kidnapped on gunpoint on 27th October, 2018, with an intention to kill him and that an encounter subsequently ensued, leading to the elimination of 03 terrorists and in connection whereof, FIR No. 177/2018, was registered in Police Station, Kulgam. It is also stated that during course of investigation it transpired that the terrorists had murdered the said Sheeraz Ahmad Bhat, after brutally torturing him with the help of appellant/detenu and other over ground workers of the banned terrorist outfit, JeM. It was on the basis of the above said material that the District Magistrate, Kulgam, after being satisfied had ordered the detention of the appellant.

5. The order of detention was challenged before the Single Bench of this Court in WP (Crl) No. 234/2019, which was dismissed, vide judgment dated 10th September, 2020, hence the present LPA.

6. One of the grounds on which the judgment and order impugned has been questioned is that the learned Single Judge had failed to notice that there was a blatant violation of the provisions of Section 13 of the Act inasmuch as the grounds of detention had not been communicated to the appellant/detenu within the prescribed 05 days period.

7. Section 13 of the Act, envisages that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than 05 days in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to the detenu, the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government.

8. The argument of learned counsel for the appellant was that order of detention was passed on 4th July, 2019 and that same was executed on 10th July 2019 and there was, thus, a delay of one day in communication of the grounds of detention to the appellant/detenu. It was also urged that since no reason had been expressed in writing for the purposes of explaining the delay of one day in communication of grounds of detention, the order was unsustainable in law, being contrary to the mandate of Section 13 of the Act.

9. From the record, it transpires that t