Point of Law: Detention order - detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu, but the Apex Court held that, was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu.

JUDGMENT :

1. By the present habeas corpus petition, the detenue through his father Ghulam Mohammad Parray, has challenged the detention Order No.24/DMS/PSA/2019 dated 10.08.2019, for short impugned order, issued by the District Magistrate, Shopian, whereby the detenue, namely Shaheen Ahmad Parray S/o Ghulam Mohammad Parray R/o Shangpora, Zainapora, District Shopian, has been detained under the provisions of the Jammu and Kashmir Public Safety Act, 1978, for short Act.

2. Briefly stated the case of the petitioner is that the detenue was arrested by the Police Station Zainapora, in case FIR no. 53/2016 & 54/2016 allegedly for the commission of offences punishable in terms of Section 13 ULA (P) Act without any rhyme; reason or justification. The District Magistrate, Shopian, detained him in the preventive custody under the provisions of J&K Public Safety Act, 1978, in terms of the impugned order and lodged him in Central Jail, Srinagar, when the petitioner was in custody having been arrested on 4th August, 2019.

3. The challenge to the impugned order is inter alia made on the grounds that, the allegations against the detenue are false and have been fabricated by the police to justify the illegal action of detaining him in preventive custody; the grounds of detention are vague, non-existent and the impugned order, being based on such vague, non-existent grounds, deserves to be quashed; the detenue is innocent and has not committed any offence of whatsoever nature; the detaining authority has not applied its mind while issuing the impugned order; the detenue was already arrested and was in police custody in connection with a case FIR no. 53/2016 & 54/2016 and had not applied bail, therefore, his preventive detention, despite him being in the police custody, is uncalled for; the material relied upon has no rational nexus with the satisfaction recorded by the detaining authority vis-à-vis the alleged activities of the detenue being prejudicial to Security of State; the material in the shape of dossier has not been furnished to the detenue nor has he been furnished the copy of FIR, statements allegedly recorded under section 161, of the Code of Criminal Procedure, seizure memo, recovery memo as mentioned in the grounds of detention so that the detenue could have made an effective representation against his detention to the Competent Authority; the petitioner is shown to be involved in connection with FIR no. 53/2016 & 54/2016 and it does not connect with the dossier supplied in August 2019; there is no plausible explanation for three years long delay for detaining the detenue in preventive custody for a case registered three years back; there is no justification given as to why the ordinary law was not sufficient for taking care of his activities, etcetera.

4. Counter has been filed by the respondents resisting therein the claim of the petitioner.

5. Heard learned counsel for the parties and considered the submissions made.

6. Learned counsel for the petitioner submits that it is unwarranted and illegal to detain an individual under the provisions of public safety Act on the same set of facts on which he previously stands arrested and was in police custody already. He further submits that there is a complete non-application of mind on the part of Detaining Authority as the order of detention is issued against the detenue for his activities being prejudicial to the security of State when there is no material placed before the Detaining Authority to reach to such conclusion, therefore, the grounds of detention and the impugned order are inconsistent with each other which makes the impugned order bad in law, therefore, deserves to be quashed.

7. Learned counsel for the petitioner has in order to strengthen his submissions referred to and relied upon 2017 (2) SLJ 650 titled Bilal Ahmad Dar v. State of J&K and Anr.; 2018 (2) SLJ 774 titled Bashir Ahmad Rather v. State of J&K and others; AIR 1999 SC 618 tiled as Powanammal v. State of Tamil Nadu