Jammu & Kashmir High Court - Srinagar Bench
Zahoor Ahmad Kasab vs Ut Of J&K And Another on 25 February, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (Crl) No. 121/2021
Reserved on: 22.02.2022
Date of Pronouncement: 25.02.2022
Zahoor Ahmad Kasab
.........Petitioner
Through: Mr. Wajid Haseeb, Advocate
Versus
UT of J&K and another
......Respondents
Through: Mr. M. A. Chashoo, AAG
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge
JUDGEMENT
1. Through the medium of instant petition quashment of detention order bearing No. 31/DMA/PSA/DET/2021 dated 13.08.2021, (hereinafter for short the „impugned order‟) passed against the detenu, namely, Zahoor Ahmad Kasab, is being sought for by the petitioner as also a writ of mandamus for his release and a compensation of Rs.10 lakhs for his illegal detention.
2. It is being stated in the petition that the detenu is a law abiding and peace-loving citizen and has never been involved in any subversive activity prejudicial to the public order or Security of the State. The detenu is stated to have been arrested in the month of March, 2021, after being summoned to Police Station Dooru, and was implicated falsely in case FIR No. 98/2020 registered at Police Station, Dooru, and while being in custody therein in the said FIR he came to be detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail, Kotbalwal, Jammu.
2 WP (Crl) No.121/20213. The impugned order is being challenged, inter alia, on the grounds that detenu was already in custody in connection with case FIR No. 98/2020 and the detaining authority, despite having the knowledge of the said fact, detained the detenu without spelling out any compelling reason therefor in the grounds of detention, more so, when there was no possibility of the release of the detenu from the custody on account of offences mentioned in the FIR particularly offences covered under sections 18, 20 and 38 of ULAP Act.
4. It is being further urged in the grounds that the detenu had not been provided copies of the relevant material, like copy of dossier, copy of FIRs, statements recorded under Section 161, 164-A Cr.P.C., referred to in the grounds of detention, material, if any, collected during the course of investigation, thus, depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional and statutory rights of the detenu guaranteed under Article 22 (5) of the Constitution of India and Section 13 of J&K Public Safety Act.
5. On the other hand, respondents, in their reply affidavit filed, resist and controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that detenu was detained pursuant to impugned order. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu.
6. It is being next averred by respondents that impugned order was executed in accordance with the relevant provisions of law and that the detenu was handed over to the Superintendent Central Jail, Kotbalwal, Jammu, for lodgment and that the contents of detention order/warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu subscribed his signatures on the execution report/order.
3 WP (Crl) No.121/20217. It is being also stated that the impugned order was executed by ASI Manzoor Ahmad No. 273/A of Police Station, Dooru, on 19.08.2021 and that the detenu is also involved in case FIR No. 64 of 2006 under section 294 RPC of Police Station, Anantnag, and FIR No. 52 of 2008 under section 13 of Gambling Act of Police Station, Dooru.
8. It is being next stated that the Advisory Board, after considering the material placed before it, in terms of Section 14 and 15 of the Act, held that there is sufficient cause for detention of the detenu. On receipt of the opinion of the Advisory Board, the Government confirmed order of detention. Respondents in the process are stated to have complied with all statutory, constitutional provisions, and followed all requisite formalities without violating any of them.
9. Heard learned counsel for the parties, perused the record and considered the matter.
10. While dealing with the first contention/ground of challenge urged by the petitioner qua non-recording of compelling reasons for detaining the detenu when he was already in custody, it would be appropriate to refer to the judgement of the Apex court in this regard passed in case titled as Surya Prakash Sharma v. State of U.P and Others, reported in 1994 (3) SCC 195, wherein at paragraph 5 following has been noticed and laid down:
"5. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw V. District Magistrate, Burdwan (1964) 4 SCR 92:
AIR 1964 SC 334: (1964) 1Crl LJ 257. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat V. Union of India (1990) 1 SCC 746: 1990 SCC (Crl) 249: AIR 1990 SC 1196, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words(SCC 754 para 21:4 WP (Crl) No.121/2021
"The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that
(i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
11. Perusal of the grounds of detention/order of detention would manifestly reveal that the detaining authority has not drawn any satisfaction as per the mandate laid down by the Apex Court in the case ofSurya Parkash Sharma(supra), while passing the impugned detention order against the detenu, so much so, the detaining authority has also failed to express any such compelling reason even in Reply Affidavit no such plausible reason is coming to fore. The impugned order, thus in law, does not sustain on this count alone.
12. Another contention urged by learned counsel for petitioner as regards grounds of detention being the ditto copy of the dossier prepared by the Senior Superintendent of Police, Anantnag, has taken this Court to have a go through the record on the file. Bare perusal thereof revealsthat the grounds of detention are the ditto copy of the dossier. It is made clear here that the detaining authority may get inputs from different agencies, including Senior Superintendent of Police of concerned District, but responsibility to formulate the grounds of detention, however, exclusively rests with the detaining authority. It is the detaining authority, who has to go through the reports and other inputs received by him from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that a person is to be placed under the preventive detention. It is, thus, for the detaining 5 WP (Crl) No.121/2021 authority to formulate the grounds of detention and satisfy itself that the grounds of detention so formulated warrant passing of the order of preventive detention. Perusal of the grounds of detention, in the present case, would portray that it is a verbatim copy of Dossier of Senior Superintendent of Police, submitted by him to the concerned Magistrate. This Court as regards the verbatim reproduction of the Dossier in grounds of detention, in the case of Naba Lone v. District Magistrate 1988 SLJ 300, while dealing with a case where a similar situation arose, has observed:
"The grounds of detention supplied to the detenue is a copy of the police dossier, which was placed before the District Magistrate for his subjective satisfaction in order to detain the detenue. This shows total non-application of mind on the part of the detaining authority. He has dittoed the Police direction without applying his mind to the facts of the case."
13. This Court again in the case of Noor-ud-Din Shah v. State of J&K &Ors. 1989 SLJ 1, quashed detention order, which was only a reproduction of Dossier supplied to detaining authority on the ground that it amounted to non-application of mind. The Court observed:
"I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenue in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case. He has acted as an agent of the police. It was his legal duty to find out if the allegations levelled by the police against the detenue in the dossier were really going to effect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenue, so as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive detention as or detained in the Act, Passing of an order without application of mind goes to the root of its validity, and in that 6 WP (Crl) No.121/2021 case, the question of going into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act."
14. A similar situation arose in the case of Jai Singh and ors. v. State of Jammu & Kashmir AIR 1985 SC 764, before the Supreme Court. The Court quashed the detention as it found that there cannot be a greater proof of non-application of mind and that the liberty of a subject being a serious matter, it is not to be tripled with in this casual, indifferent and routine manner. The Court observed:
"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jail Singh, father‟s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...."
Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai singh, S/o Ram Singh, resident of village Bharakh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jail Singh in the dossier is changed into „you‟ in the grounds of detention. We are afraid it is difficult of find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."
15. Applying this settled legal position to the facts of the present case, the order impugned cannot stand.
16. Viewed thus, in the context of what has been observed, analyzed and considered in the preceding paragraphs, instant petition is allowed and as a consequence whereof, the impugned order of detention bearing No. 31/DMA/PSA/DET/2021 dated 13.08.2021 is quashed, with a direction to the respondents including the Jail Superintendent concerned to release the detenu forthwith from preventive custody unless required in any other case.
7 WP (Crl) No.121/202117. Disposed of along with all connected CrlM(s).
18. No orders as to costs.
19. The record produced by the respondents for perusal of the Court shall be returned to learned counsel for the respondents.
(Javed Iqbal Wani) Judge Srinagar 25.02.2022 TASADUQ SAB:
Whether approved for reporting? Yes / No.