Jammu & Kashmir High Court - Srinagar Bench
Mudasir Ahmad Malik vs State Of J&K; And Others on 3 April, 2018
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
Serial No.05
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No.396/2017
Date of decision:03.04.2018
Mudasir Ahmad Malik Vs. State of J&K and anr.
Coram:
Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge
Appearance:
For the Petitioner(s): Mr. Wajid Haseeb,Adv. vice Mr. Mir Shafaqat Hussain, Adv
For the Respondent(s): Mr. M. A. Wani, Sr. AAG
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
1) Pursuant to order No.22/DMP/PSA/17 dated 13.12.2017, issued by
District Magistrate, Pulwama, Mudasir Ahmad Malik (hereinafter for short referred to as the detenue) has been taken into preventive custody and lodged in District Jail, Kathua.
2) Appearing counsel for the petitioner contended that the detenue had been admitted to bail which fact has not been made mention of in the grounds of detention though reference to FIR No.83/2017 P/S Tral has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Liberty of a person HCP No.396/2017 Page 1 of 5 is to be respected as is guaranteed, the same flows from the constitution itself. It is true that if a person is alleged to be involved in anti-national activities, he has to be dealt with iron hand but for so doing provisions of Public Safety Act are to be strictly adhered to otherwise safeguards, both technical and substantial provided for by the Act, will be rendered illusory.
3) Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "Anant Sakharam Raut v. State of Maharashtra and another"
reported in AIR 1987 SC 137:-
"We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith......"
4) Next it is contended that the material forming base for the detention has not been supplied to the detenue and the grounds of detention were neither read over to the detenue nor translated script thereof has been given to the detenue thereby disabling him from making an effective and purposeful representation against his detention.
5) The submission appears to have substance. The respondents despite repeated opportunities have not produced the detention records so as show as to whether the material forming base for the grounds of detention has been supplied to the detenue or that the grounds of detention have been read over HCP No.396/2017 Page 2 of 5 to the detenu in Kashmiri language so as to enable him to make a purposeful representation to show his innocence, thereby deprived him of the right guaranteed under Article 22(5) of the Constitution. The Hon'ble Apex Court in the judgment rendered in the case of "Sophia Gulam Mohd. Bham v. State of Maharashtra & ors" (AIR 1999 SC 3051), has held as under
"The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."
6) It shall be relevant to quote following portion from Para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "Powanammal v. State of T. N. and another" reported in (1999) 2 SCC 413:-
"......The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu.HCP No.396/2017 Page 3 of 5
Failure to do so would amount to denial of the rights of being communicated the grounds and being afforded the opportunity of making a representation against the order."
7) Learned counsel for the petitioner would contend that the detenue has been booked under FIR No.83/2017 under Section 13 ULA(P) Act P/S Tral but despite that has been detained under Public Safety Act. No compelling reasons have been recorded for passing the order of detention.
8) It is settled that a person in involved in criminal cases can be detained under the provisions of preventive laws provided there are compelling circumstances for so doing otherwise the order of detention shall be bad. In this connection, it is quite apt to quote following Para from the judgment T. P. Moideen Koya vs. Government of Kerala and ors. reported in 2004 (8) SCC 106:
"......in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenue was likely to be released on bail"
9) The object of passing the order of detention is to deter a person from acting in any manner prejudicial to the security of the State or public order. When the movement of the person is already under curtailment i.e. is in custody in connection with a criminal case, then there can be no requirement of preventive detention, unless, of course, circumstances exist for passing HCP No.396/2017 Page 4 of 5 order of detention. Preventive laws have the effect of depriving a person of liberty which is precious, deprivation thereof at times may be unavoidable, for justifying such deprivation, safeguards as are provided by law are required to be respected. A person who dares to cause any type of insecurity or threatens security of the State has to be dealt with iron hand but for so doing the Constitutional safeguards as are available are also to be respected.
10) Taking conspectus of afore-stated facts, reasons and the law laid down by the Hon'ble Apex Court, the order of detention impugned bearing No.22/DMP/PSA/17 dated 13.12.2017is unsustainable, as such, quashed. Detenue is directed to be released forthwith provided he is not required in connection with any other case.
11) Disposed of as above.
(Mohammad Yaqoob Mir)
Judge
Srinagar
03.04.2018
"Bhat Altaf, PS"
HCP No.396/2017 Page 5 of 5