Jammu & Kashmir High Court - Srinagar Bench
Tanveer Ahmad Malik (Age 29 Years) vs Union Territory Of Jammu And Kashmir ... on 31 March, 2023
Bench: Rajnesh Oswal, Mohan Lal
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 39/2022 in
WP(Crl) 141/2021
Reserved on: 28.02.2023
Pronounced on: 31.03.2023
Tanveer Ahmad Malik (Age 29 years),
S/O Abdul Gani Malik R/O Wani Mohalla,
Dooru District Anantnag,
(Through his brother namely Manzoor Ahmad) .....Appellant(s)
Through: Mr. M. Ashraf Wani, Advocate.
V/s
Union Territory of Jammu and Kashmir Through;
1. Principal Secretary to Govt. Home Department J&K Srinagar,
2. District Magistrate Anantnag. .....Respondent(s)
Through: Mr. Ilias Nazir Laway, GA
CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
Per-Mohan Lal-J
1. This Letters Patent Appeal (LPA) has been preferred by the appellant against the judgment dated 07.02.2022 rendered by the Writ Court in case titled Tanveer Ahmad Malik V/s Union Territory of J&K and another bearing No. WP(Crl) No. 141/2021, whereby, the Writ Court while dismissing the aforesaid writ petition has upheld/affirmed the detention order passed by respondent No.2 bearing No. 32/DMA/PSA/DET/2021 dated 13.08.2021.
2. Aggrieved of and dissatisfied with the impugned judgment dated 07.02.2022, appellant has assailed it's legality, propriety and correctness and has sought it's setting aside/quashment on the following grounds:-
(i) that appellant/detenue has been detained in terms of the detention order bearing No. 32/DMA/PSA/DET/2021 dated 13.08.2021 which was challenged in petition bearing No. WP(Crl) No. 141/2021 however, the petition stood dismissed vide impugned order dated 07.02.2022;
(ii) that no finding has been returned by the writ court in it's impugned judgment to the effect, that the detaining authority had cogent material before it that the appellant/detenue who was already in custody in case FIR No. 98/2020 dated 29.02.2020 registered with police station Dooru u/ss 18/20 & 38 ULAP Act was likely to be released on bail and there were compelling reasons justifying his detention.
2 LPA No. 39/20223. Mr. M. Ashraf Wani Ld. Counsel appearing for appellant has sought the setting aside of the impugned judgment of the Writ Court dated 07-02-2022 by vehemently canvassing arguments, that appellant/detenue was already in custody in case FIR No. 98/2020 dated 29.02.2020 registered with Police Station Dooru u/ss 18/20 &38 of ULAP Act, the grounds of detention do not specify that detaining authority had sufficient material/cogent/ compelling reasons to pass the detention order to the effect that the appellant/detenue was likely to be released on bail and after his release from custody he would indulge in prejudicial activities. It is argued, that such a satisfaction by the detaining authority is sine-qua-non for passing the detention order, however, in the case in hand, no such satisfaction has been arrived by the detaining authority of respondent No.2 while passing the detention order against the appellant, the same therefore is legally unsustainable and deserves to be quashed. To support his arguments, Ld. Counsel has relied upon, (i) 2020 (2) JKJ 102 HC (Younis Nabi Malik Vs. State of J&K and Others) & (ii) 1994 Supp (3) Supreme Court Cases 195 (Surya Prakesh Sharma Versus State of U.P and Others).
4. Ld. GA for respondents has vehemently sought the dismissal of LPA by articulating arguments, that the detention order has been passed by respondent No.2 on subjective satisfaction in accordance with law and there is no infringement of rights of appellant guaranteed under the constitution of India.
5. We have heard Ld. Counsel for appellant and Ld. GA for respondents. We have also perused the averments of appeal, meticulously scanned the record of Writ Court and also gone through the detention record.
6. The main plank of arguments of Ld. Counsel for appellant is, that the petitioner/detenue was already in custody in FIR No. 98/2020 u/ss 18/20 & 38 ULAP of Police Station Dooru Anantnag and there was no material before the detaining authority to the effect that the appellant was likely to be released on bail and indulge in prejudicial activities. Law is well-settled that when the detaining authority has no sufficient reasons for detaining a person under the provisions of Public Safety Act the detention order deserves to be quashed.
In 2020 (2) JKJ 102 HC (Younis Nabi Naik Vs. State of J&K and Ors), the Division Bench of J&K High Court while quashing the detention 3 LPA No. 39/2022 order by observing that there was no material before the detaining authority that detenue was likely to be released on bail in the case in which he was already arrested, in head note of the case law and in para 14 at Pages 102 & 105 held as under:-
Public Safety Act, 1978 Section 8 r/w Section 43(D) (5) of Unlawful Activities (Prevention) Act, 1967, Article 22(5) of the Constitution of India, Section 120-B of Ranbir Penal Code Svt. 1989 (1932 A. D.) and Section 5 of the Explosive Substances Act, 1908 - Preventive detention - Already in custody
- Bail - Prosecution was alleging the recovery of the grenade from the appellant and that the case stood registered against the appellant under the provisions of ULA(P) Act - there was no material before the detaining authority to the effect that the detenue was likely to be released on bail in the case in which he stood arrested - Respondents have failed to supply the dossier, based whereupon the order of detention has been passed to the detenue - Appellant has been prevented from making an effective representation in accordance with law and his rights under Article 22 of the Constitution of India - There is no mention in the dossier of the supplementary report by the investigating officer which lead to the addition of the offences under the Unlawful Activities (Prevention) Act - Detention order quashed - Appeal allowed.
14. In support of his submissions, learned counsel for the appellant has placed reliance on the pronouncement of the Supreme Court reported at AIR 2000 SC 3675 Amrit Lal & Ors. Vs Union of India & Ors., wherein the Supreme Court had held that there must be cogent material before the officer passing the detention order that the detenu who stands arrested, is likely to be released on bail. It was categorically held by the Supreme Court that such conclusion must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It was held that 'likelihood of detenu's moving an application for bail is not a cogent material'. In para 6, the Supreme Court has observed that 'likelihood of his moving an application for bail which is different from likelihood to be released on bail'. This reasoning in our view is not sufficient compliance with the requirements as laid down.
Thus, merely the possibility of the detenu moving the bail application in a case in which he was in custody but had not obtained the bail order, has been held to be insufficient reason for passing of an order of detention under preventive detention laws.
Ratio of the judgment (supra) makes the legal proposition abundantly clear, that in a case in which the detenue was already in custody and has not 4 LPA No. 39/2022 obtained bail order and if there is no cogent material before the detaining authority that detenue was likely to be released on bail, the insufficient reasons by the detaining authority would quash the detention order.
In 1994 Supp (3) Supreme Court Cases 195 (Surya Prakesh Sharma Versus State of U.P and Others) Hon'ble Supreme Court while quashing the detention order of murder accused and observing that absence of cogent material to show that detenue may again indulge in serious offences is ground for quashing of the detention order, in Para 5 observed as under:-
05. 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 Vs. District Magistrate, Burdwan, [1964] 4 SCR 921. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra SuganchandChelawat v. Union of India, AIR (1990) SC 1196 wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw (supra) answered the question in the following words (SCC p. 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 detenu is already in detention: and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention.
The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, 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."
Ratio of the case law (supra) further makes the legal proposition manifestly clear, that the detaining authority must spell out compelling/cogent reasons justifying the detention despite the fact that detenue was already in the detention and that after his release from custody he would again indulge in prejudicial/criminal activities. Applying of the ratios of the judgments (Supra) and the principles of law enunciated therein to the facts of the case in hand, it is apt to reiterate here, that the grounds of detention dated 13.08.2021 spell out that appellant/detenue was arrested on 23.02.2021 in case FIR No. 98/2020 for commission of offences punishable under Sections 18, 20, 38 of UAPA (Unlawful Activities and Prevention Act) of P/S Dooru 5 LPA No. 39/2022 Anantnag for the allegations, that the appellant was working as OGW with terrorist Organization "Kashmir Tigers" and providing shelter/logistic support and information regarding the movement of security forces to the militants particularly one Altaf Shah. Threadbare perusal of the grounds of detention clearly demonstrate, that detaining authority has not specified the compelling/cogent reasons or there was no material before the detaining authority to pass order of detention that the appellant/detenue is likely to be released on bail in near future and after his release from custody he would indulge in prejudicial activities and it is necessary to detain him to prevent him from engaging in such activities. Furthermore, in terms of Section 43 D (5) of UAPA and proviso to the said Section, appellant/detenue indicted for commission of offences under Sections 18,20,38 of UAPA cannot be released on bail if the court is of opinion that there are reasonable grounds for believing that accusations against appellant/detenue are prima-facie true. In absence of the compelling/cogent reasons, respondent No.2 (District Magistrate Anantnag) has no justification to detain appellant/detenue under Section 8 of J&K Public Safety Act 1978. The detention order, therefore, being legally unsustainable deserves its setting aside/quashment.
3. For all what has been discussed above, instant appeal under Letters Patent is allowed, whereby, the impugned judgment of the Writ Court dated 07.02.2022 alongwith detention order bearing No. 32/DMA/PSA/ DET/2021 dated 13.08.2021 passed by respondent No. 02 (District Magistrate Anantnag) for detention of appellant namely, Tanveer Ahmad Malik (Age 29 years) S/O Abdul Gani Malik R/O Wani Mohalla Dooru District Anantnag are hereby, set aside/quashed. Appellant/detenue shall be released from preventive custody forthwith if not wanted in any other case. The writ record be returned back to the writ court under Rules.
4. Disposed of accordingly.
(MOHAN LAL) (RAJNESH OSWAL)
JUDGE JUDGE
JAMMU
31.03.2023
Vijay
Whether the order is speaking Yes/No
Whether the order is reportable Yes/No