Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Bhat vs State Of J&K; And Another on 13 December, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
......
HCP No.272/2017 Date of Decision: 13.12.2017 Musthaq Ahmad Bhat v.
State of J&K and another Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing counsel:
For petitioner(s): Mr Ashiq Hussain, Adv vice Mr Mir Shafqat Hussain, Advocate For respondent(s): Mr R.A.Khan, AAG vice Mr B.A.Dar, Sr.AAG Whether to be reported in Digest/Journal? Yes/No
1. Challenge is thrown to Order no.DMS/PSA/03/2017 dated 19th July 2017, by which District Magistrate, Srinagar (respondent no.2), has placed one Mushtaq Ahmad Bhat son of Gh. Qadir Bhat resident of Kashi Mohalla, Batamaloo, Srinagar (for brevity "detenu") under preventive detention and directed his lodgement in Kotebhulwal Jail, Jammu, on grounds, submissions and averments enumerated in writ petition.
2. The case, set up by petitioner for imploring quashment of impugned order of detention, is that is that detenu was arrested by security forces and implicated in cases FIR no.18/2017 P/S Shaheed Gunj; FIR no.30/2017 P/S Batamaloo, FIR no.90/2013 PS Kothi Bagh; and FIR no.10/2014 P/S Kothi Bagh. Detenu is stated to have applied for and bail in connection with case FIR no.90/2013, was granted by competent court of jurisdiction vide order dated 4th June 2018. Bail in connection with case FIR no.10/2014 vide order dated 28th June 2017 is also granted by competent court of jurisdiction in favour of detenu. However, he was not released and was kept in custody for several days and thereafter shifted to Central Jail, Kote Bhalwal, Jammu, to be detained in preventive custody on the edifice of impugned order of detention. Petitioner, as stated in petition on hand, HCP no.276/2017 Page 1 of 11 2 approached office of respondent no.2, and unofficially obtained photostat copies of order of detention, communication letter and grounds of detention.
3. Respondents, though given ample opportunities, have not opted to file counter in opposition to the petition; as a consequence of which, right to file counter was closed.
4. Heard learned counsel for parties, perused the record produced by learned counsel for respondents and considered the matter
5. Learned counsel for petitioner, to strengthen what has been submitted and averred in petition on hand for quashing order of detention, states that the cases mentioned in the grounds of detention have no nexus with the detenu. Cases FIR nos. 90/2013 and 14/2014, in which detenu was arrested in the month of May-June 2017, have been registered four years back and no effort was made by police to arrest him in connection with the said cases notwithstanding the fact that detenu was all along available to them. His next limb of argument to bolster the present petition, is that allegations made in grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention order on such grounds is unjustified and unreasonable and that detaining authority has enumerated various FIRs in grounds of detention, but allegations against detenu are far from reality. The allegations, reflected in grounds of detention, as vehemently maintained by learned counsel for petitioner, are vague and do not justify passing of detention order on the basis of such allegations and that detaining authority has not given any reasonable justification in passing impugned order of detention, and therefore, according to vehement submission of learned counsel for petitioner impugned order or detention suffers from complete non-application of mind on part of detaining authority. His subsequent contention is that it is important to be seen that as many as ten cases FIRs HCP no.276/2017 Page 2 of 11 3 have been shown registered against detenu, but copies of all FIRs, muchless charge sheet(s), if any, submitted in these cases before competent court of law by prosecution, material collected during investigation and statement of witnesses under Section 161 Cr.P.C. or for that matter details of the incidents concomitant with those FIRs, have not been made mention of in grounds of detention, which shows and depicts total non-application of mind on part of detaining authority. Learned counsel also avers that as per grounds of detention, last alleged activity attributed to detenu in case FIR no.30/2017 registered in Police Station Batamalloo, wherein he is alleged to have appealed for boycott of bye-elections, which were held on 10th April 2017, meaning thereby the last alleged activity took place around 10th of April 2017, whereas the order of detention has been passed on 19 th July 2017, i.e. after a delay of more than three months from the date the alleged activity, which has been made basis of impugned order of detention, has occurred and during the period of delay no fresh activity has been attributed to detenu. Thus, according to learned counsel, delay that too unexplained, has snapped proximity of detention order with the time its alleged requirement arose. Another submission of learned counsel is that police initially on 22nd May 2017 recommended detention order, but detention order impugned has been passed on 19 th July 2017, i.e. after a delay of about two months and therefore again the unexplained delay between the proposal and passing of detention order throws considerable doubt on the genuineness of the necessity of the passing detention order, which, in essence, divulges declination of detaining authority to pass detention order on these grounds upon the earlier communication dated 22nd May 2017 and detaining authority has not given any change of circumstances between 22nd May and 24th June 2017, which has prompted it to reconsider the matter and pass impugned order of detention.
6. He also states that preventive detention cannot be resorted to when HCP no.276/2017 Page 3 of 11 4 sufficient remedies are available under general laws of land for any omission or commission under such laws and that preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve investigating authorities of their normal functions of investigating crimes which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. To buttress his submissions, learned counsel for petitioner has placed reliance on Sama Aruna v. State of Telengana AIR 2017 SC 2662; V. Shantha v. State of Telangana & ors, AIR 2017 SC 2625; Haradhan Saha v. The State of West Bengal & Others, (1975) 3 SCC 198 and Union of India v. Paul Manickam & Another, (2003) 8 SCC 342.
7. Per contra learned counsel for respondents states that the material, which was relied by detaining authority, was furnished to detenu besides grounds of detention along with order of detention was supplied to detenu against proper receipt and grounds of detention are precise, proximate, pertinent and relevant and that there is no vagueness or staleness in grounds coupled with definite indications as to the impact thereof, which has been precisely stated in the grounds of detention and the incidents clearly substantiate subjective satisfaction arrived at by detaining authority.
8. The reverence of life is insegragably concomitant with the dignity of a human being who is basically divine, not obsequious. A human personality is indued with potential infinitude and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, "a brief candle", or "a hollow bubble". The spark of life gets more splendiferous when man is treated with dignity sans humiliation, for every man is expected to lead an HCP no.276/2017 Page 4 of 11 5 honourable life which is a splendid gift of "creative intelligence". When a dent is created in the reputation, humanism is paralysed. Reverence for the nobility of a human being has to be the cornerstone of a body polity that believes in orderly progress. But, some, the incurable ones, become totally oblivious of the fact that living with dignity has been enshrined in our Constitutional philosophy and it has its ubiquitous presence and the majesty and sacrosanctity dignity cannot be allowed to be crucified in the name of precautionary incarceration. Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, "the reverence of life offers me my fundamental principle on morality". The aforesaid expression may appear to be an individualistic expression of a great personality, but, when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands.
9. Article 22(3)(b) of the Constitution of India, which vouchsafes preventive detention, is only an exception to Article 21 of the Constitution.
An exception is an exception and cannot ordinarily nullify the full force of main rule, which is right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting civil liberties of people and not to put them in immurement for a long period shorn of recourse to a lawyer and without a trial. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in essence a detention order of three months, or any other period(s), is a punishment of that particular period's incarceration. What difference is it to detenu whether his immurement is called preventive or punitive? Besides, in cases of preventive detention no offence is proved and justification of such detention is suspicion or reasonable probability, and there is no conviction that can only be warranted by legal evidence. Preventive detention is every so often described as a 'jurisdiction of suspicion', Detaining authority HCP no.276/2017 Page 5 of 11 6 passes detention order on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to rule of law.
10. Preventive detention law makes room for detention of a person without a formal charge and without trial. The person detained is not required to be produced before the Magistrate within 24 hours, so as to give an opportunity to the Magistrate to peruse the record and decide whether the detenu is to be remanded to police or judicial custody or allowed to go with or without bail. The detenu cannot engage a lawyer to represent him before the detaining authority. In the said background, it is of utmost importance that whatever procedural safeguards are guaranteed to detenu by the Constitution and preventive detention law, should be strictly followed. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer. The importance of a lawyer to enable a person to properly defend himself has been elaborately explained by the Supreme Court in A.S. Mohd. Rafi v. State of Tamilnadu AIR 2011 SC 308 and Md. Sukur Ali v. State of Assam, JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of the U.S. Supreme Court in Powell v. Alabama, 287 U.S. 45 (1932), "Even the intelligent and educated layman has small and sometimes no skill in the science of law", and hence, without a lawyer he may be convicted though he is innocent. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, historical struggles, will become HCP no.276/2017 Page 6 of 11 7 nugatory. In State of Maharashtra & ors. v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 this Supreme Court observed:
"...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the Government we fought for". And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC 271, and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54."
11. The Constitution Bench of the Supreme Court in M. Nagaraj & ors. v. Union of India & ors. (2006) 8 SCC 212, observed:
"It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race."
12. The Nine Judge Constitution Bench of the Supreme Court in I.R. Coelho (dead) By LRs. v. State of T.N., (2007) 2 SCC 1, observed:
"It is necessary to always bear in mind that fundamental rights have been considered to be the heart and soul of the Constitution..... Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as & "transcendental", & inalienable, and primordial".
13. Detention record, produced by learned counsel for respondents, on its glance reveal that warrant of impugned order of detention has been executed by ASI Ali Mohammad no.EXK/811279-579/CID of Police Station Batmaloo. It is important, in view of the case set up and having HCP no.276/2017 Page 7 of 11 8 regard to facts and circumstances of the case, to reproduce Execution Report overleaf detention order hereunder:
Execution Report In compliance to District Magistrate Srinagar's Order No.DMB/PSA/03/ 2017 of 2017 dated 19.07.2017, issued under endorsement No.DMS/Jud/ PSA/13-18/2017 dated 19.07.2017, I, A.S.I. Ali Mohammad No.EXK/ 811279-579/CID, of P/S Batmaloo took the custody of Mushtaq Ahmad Bhat @ Mushtaq-Ul-Islam @ Goga S/o Gh. Qadir Bhat R/o Kashi Mohalla Batmaloo Srinagar from P/S Kothibagh Srinagar on 24.07.2017, for execution of PSA detention Warrant at Central Jail Jammu Kot Bhalwal. The detention warrant has been executed at Central Jail Jammu Kot Bhalwal today on 25.07.2017. The notice of detention has been given to the said detune [detenu] and contents of detention warrant have been read over to the said detune [detenu] in English and explained him in Kashmiri Language which he understood fully, in lieu of which his signature has been obtained below at mark (A).
The detention order (01 leaf), grounds of detention (2 leaves), Notice regarding detention (01 leaf), dossier of Police (04 leaves), Copies of FIR No.30/2017, FIR No.17/2015, FIR No.108/2009 of P/S Batmaloo (03 leaf) (Total 11 Leaves) have been handed over to the above said detune [detenu] at Central Jail Jammu Kot-Bhalwal on 25.07.2017 against property receipt. The detune [detenu] has also been informed that he can make representation to the Government as well as Detaining Authority against his detention order, if he so desires."
14. The above endorsement overleaf detention order made by Executing Officer at the time of execution of detention order, does not make a reference to documents in question and does not record that all such documents were supplied to detenu at the time of execution of detention order or immediately thereafter as were required to be furnished to detenu. The grounds of detention make reference to as many as ten FIRs, registered against detenu. It appears that the said cases have weighed with detaining authority at the time impugned order of detention was made. Copies of only three FIRs, bearing FIRs nos.30/2017, 17/2015 and Dossier, appears to have been handed over to detenu. The material viz. statements recorded under Section 161 Cr.P.C. and other material collected in connection with investigation of the aforesaid three cases muchless of other seven FIRs or copies of other seven FIRs, has not been furnished to detenu. The Constitutional and statutory safeguards are meaningless unless and until HCP no.276/2017 Page 8 of 11 9 the material, on which detention order is based, is supplied to detenu. It is only after detenu has all the said material available that detenu can make an effort to convince detaining authority and thereafter Government that their apprehension qua his activities are baseless and misplaced. If detenu is not supplied material on which detention order is based, detenu would not be in a position to make an effective representation against his detention. Failure on part of detaining authority to supply material relied at the time of making detention order, renders detention illegal and unsustainable. While holding so, I draw support from Dhannajoy Dass v. District Magistrate AIR 1982 SC 1315; Sofia Ghulam Mohammad Bam v. State of Maharashtra and Others AIR 1999 SC 3051; Union of India v. Ranu Bhandari 2008, Cr. L. J. 4567; Syed Aasiya Indrabi v. State of Jammu and Kashmir and Others S.L.J. 2009 (I) 219; and Tahir Haris v. State and Others AIR 2009 SC 2184.
15. In the present case, averment of learned counsel for respondents is that there are very serious allegations against detenu as he has always been in the lead role in stone pelting incidents and creating law and order problem in Srinagar City and its adjacent areas and during recent unrest he has been found a forefront element in assembling disgruntled elements to enforce Hartals and instigating gullible youth to resort to stone pelting in various areas of Srinagar City. And in this connection, criminal cases are already going on against detenu under various provisions of the Ranbir Penal Code and other Penal laws, and if he is found guilty, he will be convicted and given appropriate sentence. Maybe, offences allegedly committed by detenu attract punishment under prevailing laws but that has to be done under prevalent laws and taking recourse to preventive detention laws would not be warranted. Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed. After all, HCP no.276/2017 Page 9 of 11 10 preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha v. State of Tami Nadu AIR 2011 SCW 2262, while emphasising need to adhere to procedural safeguards, observed:
"It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as "jurisdiction of suspicion", The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital."
16. It may not be out of place to mention here that preventive detention is not a quick alternative to normal legal process, is the saying of the Supreme Court in V. Shantha v. State of Telangana & ors. AIR 2017 SC 2625. The Supreme Court has held that preventive detention of a person by a State after branding him a 'goonda' merely because the normal legal process is ineffective and time-consuming in 'curbing the evil he spreads', is illegal and that detention of a person is a serious matter affecting the liberty of the citizen. Preventive detention cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws, the Supreme Court observed. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to HCP no.276/2017 Page 10 of 11 11 preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. My views are fortified by the judgements rendered in Rekha's case and V. Shantha v. State of Telangana case (supra); Munagala Yadamma v. State of A.P. (2012) 2 SCC 386; Sama Aruna v. State of Telengana AIR 2017 SC 2662.
17. For the reasons discussed above, the petition is allowed and detention order no.DMS/PSA/03/2017 dated 19th July 2017, passed by District Magistrate, Srinagar - respondent no.2, as also extension order, bearing Government order no.Home/PB-V/2020 of 2017 dated 23rd October 2017, directing preventive detention of Mushtaq Ahmad Bhat son of Gh. Qadir Bhat resident of Kashi Mohalla, Batamaloo, Srinagar, are quashed. Respondents are directed to set detenu at liberty if not required in any other offence. Disposed of.
18. Record be returned to counsel for respondents.
( Tashi Rabstan ) Judge Sirnagar 13th December 2017 Ajaz Ahmad HCP no.276/2017 Page 11 of 11