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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

…

WP(Crl) 143/2020

Reserved on: 18.02.2021

Pronounced on: 01.03.2021

Showkat Ahmad Bhat

…….Petitioner

Through:

Mr. R. A. Jan, Sr. Advocate with

Mr. Taha Khalil, Advocate

V/s

UT of J&K and Ors.

……Respondent(s)

Through:

Mr. Mir Suhail, AAG

CORAM:

HON’BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE

JUDGEMENT

The detenu, Showkat Ahmad Bhat son of Ghulam Hassan Bhat

resident of Wahibugh Pulwama District Pulwama, through his father seeks

quashment of detention order no 26/DMP/PSA/20 dated 09.09.2020

purporting to have been passed by District Magistrate Pulwama, with

consequent prayer for his release forthwith.

2.

The petitioner-detenu has challenged the order of detention on the

following grounds:

<a) that no compelling reason or circumstance was disclosed in

the order or grounds of detention to take the detenu in preventive

detention, moreso in view of the fact that as on the date of passing of the

aforesaid order of detention, the detenu was already in custody, though

bail granted by the competent court of jurisdiction.

b) that the detenu has not been provided the material forming basis

of the detention order, to make an effective representation against his

detention order;

c) that the detaining authority has not prepared the grounds of

detention in a hyper technical language not able to detune to understand

the same..

d) that the detaining authority has not applied its mind while

passing the detention order.=

e) that the order of detention/grounds were not served upon the

detenu within time as prescribed in the Act.=

SYED AYAZ HUSSAIN

2021.03.02 12:31

I attest to the accuracy and

integrity of this document

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3.

Notice was issued to respondents. They appeared through their learned

counsel and filed counter affidavit wherein they submitted that the detention

order is well founded in fact and law and seeks dismissal of the Heabus

Corpus Petition. Detention record has been produced.

4.

I have heard learned counsel and considered the matter. As per

pleadings and contentions raised the main ground of attack projected by

petitioner against the detention in question is, that grounds of detention were

not duly communicated to him, which prevented him from making an

effective representation against the same and thereby he was deprived of an

important constitutional right, and that the detaining authority did not apply

it9s mind while passing the detention order and has not revealed as to on what

material he assumed subjective satisfaction regarding necessity of having

the subject detained when the detenu was already under custody, even

though bail was granted by the competent court of jurisdiction but the detenu

not released, the said fact has not been mentioned in the detention order. It

appears that there is total non-application of mind on part of detaining

authority while passing the detention order.

5.

So far as the ground taken i.e non communication of the grounds of

detention is concerned, perusal of file reveals, that there is nothing to show

or suggest that the grounds of detention couched in hyper technical language

were explained to the detenu in a language not understood by him, as there

is no material to that effect is on record. This according to the view taken

by Hon9ble Apex Court in <LallubhaiJogibhai Patel v. Union of India,

(1981) 2 SCC 427=; the 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. The Apex

Court observed as under:

<Communicate9 is a strong word which

means that