ORDER
G.D. Sharma, J.
1. This petition under Article 226 of the Constitution of India read with Section 103 of the constitution of Jarnmu and Kashmir has been filed by the detenu (Nawaz-ul-Haq) praying to quash the order of detention bearing No. DMS/PSA/436/93 dated 4-11 -1995 (passed by respondent No. 2 under Section 8(2) of the J&K Public Safety Act (Act No. 6 of 1978)) (hereinafter referred to as ‘the Act’). The grounds which led to the passing of the impugned order are that the detenu became a member of the outlawed militant organisation, namely, Al-Zahad and obtained training in handling arms and ammunitions. Initially, he had been distributing anti-India Literature and pasting the posters and motivating others to join mitancy but later on started giving food, clothing and shelter to the militants. Because of mounting pressure of the security forces, the detenu in the month of August, 1995 surrendered before the Border Security Force authorities and was released on the same day. Instead of becoming a law abiding citizen, he joined another militants outfit namely, ‘Harkat Ansar’ and one Mashooq S/o Ghulam Mustafa R/O Bhaderwah issued one pistol to him. Then he started acting as a courier and messenger of the local militants. He was passing on the information of militant activities to the Command Head of Militants situated in Srinagar. In the year 1993, he had distributed/passed anti-India literature in the town of Bhaderwah. During the month of March, 1993, he along with other militants, namely, Hashooq Nazaaz, Nizam, Javid Bablu, Habibullah and Kaiser had attacked the personnel of Border Security Force at Paddar, Tehsil Bhaderwah. In the month of July, 1995, he along with his associates had fired the guns upon Army and STF during Cordon at Awante Bhawan, Srinagar and was arrested under FIR No. 162/90 (offences under Section 3/4 TADA (P) Act registered with Police Station, Shergarhi, Srinagar). His activities were found highly prejudicial to the security of the State and accordingly the impugned order was passed. The order has been challenged on the following grounds:–
It was not approved by the Govt. within the statutory period as provided under sub-clause (4) of Section 8 of the Act and he was not referred to the Advisory Board constituted under the Act and that no opinion was expressed by the said Board about his detention. The grounds of detention were also not served upon him. Due to the non-availability of any material he could not make any representation to the Government. He has pleaded his innocence. According to him, he had gone to Srinagar to see his relatives and get medical treatment but was arrested in a cordon operation.
2. On 30-10-1996, Mr. Rahul Pant, GA made a statement that the detention order in question stood withdrawn and the detenu released. The counsel appearing for the petitioner detenu had insisted that respondent-State should file counter in the writ petition as damages in the amount of Rs. 5.00 Lakhs for wrongful confinement were also claimed. The counter was filed by respondent No. 3 wherein it was admitted that on 1-8-1995 the petitioner was arrested under FIR No. 162/92 of Police Station, Shergarhi for the commission of offences under Sections 3/25, Arms Act and 3/4 TADA(P) Act. It was pleaded that he was an activist of militant organisation namely, Harkat-ul-Ansar and was having the rank of Military Advisor of District Doda. That subsequently he was arrested under FIR No. 11/95 by the Police Station, Shergarhi for the commission of offences under Section 3/5 I.E.S, 3/4 TADA and 307, RPC. It was denied that he was continuously interrogated from July 26, 1995 to Nov. 10, 1995 in Police Station, Shergarhi. Respondent No. 4 (Supdt. Central Jail, Jammu) stated on affidavit that the detenu was lodged in the Central Jail, Jammu on Nov. 11, 1995 in execution of the detention warrant. Affidavit of Mohd Yasin S/o Ghulam Qadir (Assistant Sub-Inspector of Police Station, Shergarhi, Srinagar) has also been filed.
3. Heard the arguments.
4. The counsel for the petitioner has contended that from the record the detention of his client from 1-10-1995 to 30-10-1995 has been proved as unauthorised and as such the detenu is entitled to the damages. He has referred Annexures R-5 and R-6 (at pages 15 & 17) filed with the affidavit of above named ASI Mohd Yasin. Annexures R-5 and R-6 (supra) are the duly filled prescribed forms for getting the remand. Section 167, Cr. P.C. lays down the procedure that when a person is arrested, and it appears to the Investigating Officer that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, Cr. P.C. and there are grounds for believing that the accusation or information is well founded, the Officer-in-charge of the Police Station or the Police Officer making the investigation if he is not below the rank of Sub Inspector has to transmit forthwith a copy of the entries in the diary prescribed relating to the case to the nearest officer or Judicial Magistrate and at the same time forward the accused to such Magistrate. Under Sub-section (2) of the said section there is a proviso added and under head (b) it is incumbent upon the Magistrate not to authorise the detention in any custody under this section unless the accused is produced before him. Sub-clause (3) of the section mandates that a Magistrate authorising under this section detention in the custody of the police has to record his reasons for so doing. The learned counsel contends that in the instant case the Officer Incharge of the Police Station or the Police Officer making the investigation (as the case may be) as well as the concerned Magistrate had not followed the mandates of the law because the detenu was not produced before the Magistrate for the period commencing from 1-10-1995 to 30-10-1995. Annexure R-5 (at page 15) is the remand form filled by the concerned Investigating Officer wherein the detenu has been shown as a resident of Handwara. Through this form request was made for obtaining the remand of detenu Nawaz-ul-Haq along with other detenues for the period 1-10-1995 to 15-10-1995 (for the commission of offences registered under FIR No. 162/94 of Police Station, Shergarhi. According to Annexure R-6 (at page 17) the remand was sought of the petitioner from 15-10-1995 to 30-10-1995 and hewas shown as a resident of Handwara. On the back of these annexures there are orders of the Executive Magistrate 1st Class (Mr. G. M. Gasi) whereby the request of remand was granted. The order dated 1-10-1995 reads as under:–
As requested by S.H.O. P/S Shergarhi, the accused persons mentioned in form remand have been remanded for 15 days w.e.f. today for police lock up.
1-10-1995 Sd/- H.M. Gasi
Executive Magistrate
1st Class.
Order dated 15-10-1995 reads as under:--
15-10-1995:As requested by SHO P/S
Shergarhi, the accused persons
mentioned in form remand have
been remanded for 15 days w.e.f.
today for police custody. -
Sd/- G. M. Gasi,
Executive Magistrate 1st
Class.
5. It is thus proved from the record produced by the respondents that the detenu was not produced by the investigating officer before the Magistrate and the latter had also failed to discharge his statutory duty to require the presence of the detenu before him at the time of passing the above stated orders. Further, he had also failed to assign any reason in authorising the detention. Thus, the mandates of Section 167, Cr. P.C. have been observed in their breach rather than in their observance. The Investigating Officer was so careless and casual that he even did not record the correct permanent address of the detenu. As per the record of the detaining authorities the detenu was having the rank of Military Advisor of Harkat-ul-Ansar Outfit of District Doda and subsequently acting as Deputy Chief Organiser of the said Organisation. The authorities while detaining him should have been careful in fulfilling the requirements of law. The law enjoins that the safeguards provided under the Act while depriving a detenu of his liberty should be observed strictly and religiously. For making a claim for the damages the counsel of the petitioner has cited the case of Bhim Singh, MLA v. State of J. & K. AIR 1986 SC 494 : 1986 Cri LJ 192 as well as Smt. Nilabati Behera v. State of Orissa AIR 1993 SC 1960 : 1993 Cri LJ 2899.
6. In the case of Bhim Singh, MLA (supra) the remand order of the detenu was obtained by the police by not producing him before the Magistrate within the requisite period. It was held that there was violation of his rights under Article 21 of the Constitution. The victim was compensated for the depravation of his right by awarding a compensation of Rs. 50,000/-. In the case of Nilabati Behera (supra) it was held that when there is violation by the State of fundamental freedoms writ of compensation is available. That was a case of custodial death and on the facts and circumstances the compensation in the amount of Rs. 1,50,000/- was considered appropriate.
7. The petitioner in the instant case has pleaded that he was running a shop of photo-stat in the town of Bhaderwah. His detention for the abovesaid period i.e. from 1-10-1995 to 30-10-1995 has been found unauthorised. It is so purely because of the casual and careless conduct of the Investigating Officer and the concerned Magistrate. Both of them had prima facie failed to discharge their statutory duties. On this factual aspect of the case, it is proved that the constitutional rights of the detenu enshrined under Articles 21 & 22 were violated. The petitioner as such, has to be suitably compensated and it is hoped that the detaining authorities shall not allow their subordinates to commit such like breaches of procedural laws in future because it can help a detenu in getting himself released not on merits but on technicalities which can also prove a threat to the security of the State. On the facts and the circumstances the detenu is awarded compensation of rupees twenty thousands payable by the respondents within a period of three months be deposited before the Registrar (Judicial) failing which interest will accrue at the rate of 12% per annum. The respondents are at liberty to deal with the delinquent subordinate in accordance with law.