Youth disappeared after being taken into custody by Army unit

The Jammu and Kashmir High Court on Saturday asked the Defence Ministry to pay a compensation of Rs. 10 lakh to the family of a Srinagar youth who disappeared while in the custody of an Army unit.

According to his family, Mushtaq Ahmad Dar of Bemina was taken into custody by 20 Grenadiers in April 1997 and was not seen thereafter.

The order by Justice F.M.Ibrahim Kalifulla, came in response to a habeas corpus petition filed by Azizi Begum, mother of Mushtaq. The judge observed that Article 21 of the Constitution had been violated in this case.

Counsel for the petitioner submitted that officers of the unit admitted detaining Mushtaq and assured the family that he would be released shortly. However, later the Army told the mother that he was not in their custody.

After admitting the petition, the J& K High Court ordered a judicial inquiry into the incident on May 2, 2000 and it was conducted by Additional Sessions Judge Srinagar. In his report submitted to the High Court on July 18, 2000, he concluded: “Mushtaq Ahmad Dar was lifted by 20 Grenadiers of the Army camped at Boatman Colony Bemina on 13 April 1997 and thereafter disappeared.” The report was considered by the High Court on October 28, 2003 and the findings noted.

In the final judgment delivered by Justice Kalifullah this week, with the judicial inquiry report providing the basis, the Army unit was held responsible “for the disappearance of Mushtaq in custody.”

“Having regard to the categoric findings of the learned Additional Sessions Judge, Srinagar, it will have to be held that in the case on hand, violation of Article 21 was patent and incontrovertible,” Justice Kalifullah observed.

“This is a case of total disappearance of the detenue, who was taken into custody by the personnel of 20 Grenadiers. This court views this as a fit case where award of compensation as a public law remedy under Article 226 to the aggrieved person, namely the petitioner, is fit and appropriate as well as in the interest of justice.”

While awarding the compensation, the court held that it could be reasonably held that a compensation of Rs. 10 lakh, to be payable by the respondents would meet the ends of justice.

“Since various factors placed before this court reveals that Union of India through Defence Secretary and Commanding Officer 20th Grenadiers were mainly responsible for the disappearance of the detenue, I am convinced that the payment of the said amount of Rs. 10 lakh can be directed to be made by the Union of India in the first instance with liberty to recover the same from the other respondents,” the High Court said.