Jammu and Kashmir HC Quashes Detention Order as the Person was already in Custody

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In the case of Tufail Ahmad Zaldar vs. State of J&K and Ors. the High Court of Jammu and Kashmir (Srinagar Bench) on 20/03/2020 quashes the order of detention as the Person was already in custody. The petitioner (father of detainee) seeks to quash of detention order bearing no. DMS/PSA/81/2019 dated 16.08.2019, passed by District Magistrate Srinagar, whereby the detainee namely Tufail Ahmad Zaldar s/o Mohammad Shafi Zaldar resident of Ranger Stop Zaldar Mohalla, Saidakadal, Srinagar, is under detention.

It was alleged that the detenu was involved in anti-national activities, disturbing the public tranquillity and peace in the area of Saidakadal and its adjacent areas. It is submitted that the detenu was found indulging in disturbing the maintenance of public order by way of resorting to stone-pelting. It is submitted that the detenu is a constant threat to the security of the State.

Petitioner’s Arguments

The learned counsel for the petitioner-detenu has raised primarily three issues before the court questioning the validity of the detention.

The first point taken by the learned counsel for the petitioner is that the detention order was passed while the detenu was already in custody in respect of the FIR No. 70/2019. In these circumstances, it was submitted by the learned counsel for the petitioner, the detaining authority ought to have satisfied himself with the fact that there was an imminent likelihood of release of the detenu in that case and that it was necessary to detain the detenu in order to prevent him from indulging in prejudicial activities. According to the learned counsel for the petitioner, there is no such satisfaction recorded in the grounds of detention. He placed reliance on the decision of the Supreme Court in the case of Surya Prakash Sharma v. State of U.P. and others to submit that since the said satisfaction was not recorded, the detention order was vitiated.

The second point taken by the learned counsel for the petitioner was that non-supply of relevant material/ documents also vitiated the detention order. In this context, it was the case of the petitioner that no documents at all were supplied to the petitioner/detenu. The non-supply of relevant documents seriously undermines the capacity of a detenu to make an effective representation against the detention and that in itself would be a ground to declare the detention order void. This right flows from the Constitution of India. In support, he referred to the decision of the Supreme Court in the case of Sophia Gulam Mohd. Bham v. State of Maharashtra.

The third point raised by the learned counsel for the petitioner was based on the provisions of Section 13 of the J&K Public Safety Act, 1978, which require that the grounds of detention should have been nullified.

Also, page communicated to the detenu in the language which was understandable to him and that he should be afforded the earliest opportunity of making a representation against the order to the Government. According to him, the detenu only understood Kashmiri language and the grounds of detention were in English language and no translated copies of the grounds of detention in Kashmiri were provided to him. This seriously prejudiced his right to make an effective representation and on this ground also the detention order would be vitiated.

Defendant’s Arguments

Mr. B.A Dar, Sr. AAG, defended the impugned detention and he responded to each of the points. With regard to the first point, he submitted that there is a mention in the grounds of detention about the arrest of the detenu with reference to the FIR No. 70/2019. Therefore, according to him, the detaining authority was aware of the fact that the detenu was already in custody when the detention order was passed. He, therefore, submitted that the point raised by the learned counsel for the petitioner on this score was untenable.

With regards to the plea of non-supply of material/documents which Mr Dar placed before us, the record pertaining to the detention. Going through the same, it was found that there was nothing to show that the detenu had signed any document which reflects that he has received the entire material for filing a representation against his detention order.

In so far as the point of supply of translated copies of grounds of detention in Kashmiri language is concerned, the learned Sr. AAG submitted that there was no need to supply translated copies of grounds of detention in Kashmiri language as grounds of detention had been communicated in the language understandable to the detenu.

He also further added that the page communicated to the detenu in the language which was understandable to him and that he should be afforded the earliest opportunity of making a representation against the order to the Government. According to him, the detenu only understood Kashmiri language and the grounds of detention were in English language and no translated copies of the grounds of detention in Kashmiri were provided to him. This seriously prejudiced his right to make an effective representation and on this ground also the detention order would be vitiated.

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Hon’ble Mr. Justice Ali Mohammad Magrey said,

“From the above decision, it is evident that for an order of detention to be valid in respect of a person in custody, it is necessary that the grounds of detention must show that;

the detaining authority was aware of the fact that the detenu is already in custody; and

There were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression ‘compelling reasons’ has also been explained by the Supreme Court as signifying that there must be cogent material before the detaining authority on the basis of which it may be satisfied that the detenu is likely to be released from custody in the near future, and taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and that it was necessary to detain him in order to prevent him from engaging in such activities.”

Viewed thus, the Petition is allowed and the impugned detention order is quashed along with any subsequent order passed thereto. The detenu is directed to be released forthwith.


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