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Jammu & Kashmir High Court - Srinagar Bench

Salman Ahmad Dar vs State Of Jammu And Kashmirand Others on 5 August, 2021

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR
                         .....
                          WP(Crl) No.405/2019
                           CrlM No. 775/2019

                                                     Reserved on: 04.08.2021
                                                  Pronounced on:05.08.2021.

Salman Ahmad Dar
                                                         .........Petitioner (s)

                                         Through:Mr. Sajad Geelani, Advocate

                                  Versus

State of Jammu and Kashmirand others
                                                        .........Respondent(s)

                                           Through:Mr. Asif Maqbool, Dy.AG

CORAM:

           Hon'ble Mr. Justice Javed Iqbal Wani, Judge

                              JUDGEMENT

1. Through the medium of instant petition quashment of detention order bearing No.17/DMS/PSA/2019 dated 06.08.2019, (hereinafter for short the 'impugned order') passed against the detenu, namely,Salman Ahmad Dar,is being sought for by the petitioner as also a writ of mandamus for his release.

2. It is being stated in the petition that the detenu is a law abiding and peace-loving citizen and has never 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 August 2019, after being summoned to Police Station Shopian, and was implicated falsely in case FIR No. 123/2019registered at Police Station Shopian and while being in custody therein the said FIR came to be detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail, Srinagar.

3. The impugned order is being challenged, inter alia, on the grounds that detenu was already in custody in connection with case FIR No.123/2019 and the detaining authority, despite having the knowledge of the said fact, detained the detenu without spelling out any compelling reason thereof in the grounds of detention, moreso, when there was no possibility of the release of the detenu from the custody on account of offences of the FIRparticularly offences covered under Chapter IV and VI of the ULP(A) 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 FIR, Statements under Section 161, 164-A Cr. PC, referred to in the groundsof detention, thus, depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional right of the detenuguaranteed under Article 22 (5) of the Constitution of India.

5. On the other hand,respondents, in their reply affidavit filed in opposition to the petition, 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, Srinagar, 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.

7. It is being next stated that the Advisory Board, after considering the material placed before it, in terms of Section 16 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.

8. Heard learned counsel for the parties, perused the record and considered the matter.

9. 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 Para 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 SuganchandChelawat 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:

"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 4 WP(Crl) No.405/2019 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."

10. Perusal of the grounds of detention/order of detention wouldmanifestly reveal that the detaining authority has not drawn anysatisfactionas per the mandate laid down by the Apex Court in the case of Surya Parkash Sharma(supra), while passing the impugned detention order against the detenu, so much so, the detaining authorityhas also failed to express any such compelling reason even in Reply Affidavit. The impugned order,thus in law, does not sustain on this count alone.

11. Another contention exhorted by learned counsel for petitioner concerning non-supply of material has taken this Court to have a glimpse of detention record, made available by learned counsel for respondents. Plain reading thereof unveil, amongst others, execution report as regards execution of impugned order of detention. It divulges that only nine leaves have been given to detenu.

12. Perusal of impugned detention order reveals that on the basis of dossier placed before detaining authority by Senior Superintendent of Police, Shopian, vide no.CS/D-1/2019/3140 dated 21.06.2019, detaining authority was satisfied that with a view to prevent detenu from acting in any manner prejudicial to the security of the State/ Country, it was necessary to detain detenu under necessary provisions of law. So, it is on the basis of dossier and other connected material/documents that impugned detention order has been passed by detaining authority. Grounds of detention, when looked into, gives reference of two FIRs to have been registered against detenu. Involvement of detenu in aforesaid cases appears to have weighed with detaining authority, while making detention order. The detention 5 WP(Crl) No.405/2019 record, as noted above, does not indicate that copies of statements recorded under Section 161 Cr.P.C. in above FIRs and other material collected in connection with investigation of aforesaid cases, was ever supplied to detenu; even copy dossier has not been furnished to detenu on the edifice thereof, impugned detention order has been issued. Aforesaid material, thus, assumes importance in the facts and circumstances of the case. It needs no emphasis, that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If detenu is not supplied the material, on which detention order is based, he will not be in a position to make an effective representation against his detention order. Failure on part of detaining authority to supply material, relied at the time of making detention order to detenu, renders detention order illegal and unsustainable. These views are fortified, given the law laid down by the Apex Court in ThahiraHaris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; DhannajoyDass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam MohdBham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed AasiyaIndrabi v. State of J&K & ors, 2009 (I) S.L.J 219.My views are also cemented by the judgement dated 18.05.2021 delivered in WP(Crl) No. 107/2020 titled Mohammad Rafiq Mir v. UT of J&K and another.

13. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22 has made it clear that it is only the procedural requirements, which are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present 6 WP(Crl) No.405/2019 case, procedural requirements, as discussed above, have not been followed and complied with by respondents in letter and spirit and as a consequence thereof, petition on hand requires to be allowed.

14. It is germane to mention here that the judgement referred to and relied upon by the counsel for the respondents titled as'Shiv Ratan Makim Vs. Union of India and Others, reported in 1986 SC 610', is not applicable to the facts and circumstances of the case being misplaced and misdirected and does not lend any support thereof to the case of the respondents.

15. Viewed thus, in the context what has been observed, analyzed and considered in the preceding paragraphs, instant petition is allowed and consequent to which the impugned order of detention bearing No.17/DMS/PSA/2019 dated 06.08.2019, is quashed, with the direction to the respondents to release the detenu forthwith from preventive custody unless required in any other case.

16. Disposed of along with all connected CrlM(s).

17. No orders as to costs.

18. The detention record produced by the respondents is returned to learned counsel for the respondents in the open Court.

(Javed Iqbal Wani) Judge Srinagar 05.08.2021 TASADUQ SAB Whether approved for reporting?Yes/ No. ISAQ HAMEED BHAT 2021.08.06 16:21 I attest to the accuracy and integrity of this document