Jammu & Kashmir High Court - Srinagar Bench
Date Of Order: _____________ vs . on 22 April, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
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HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No. 346/2018
Date of order: _____________
Zakir Hussain Mir
Vs.
State & Ors.
Coram:
HON'BLE MR. JUSTICE RASHID ALI DAR, JUDGE
Appearing Counsel:
For Petitioner(s): Mr. Syed Musaib, Advocate.
For Respondent(s): Mr. Sajjad Ashraf, GA.
i) Whether approved for reporting in Law journals etc.: Yes / No
ii) Whether approved for publication in press: Yes / No
1. Respondent No.2(District Magistrate, Kupwara) has, in pursuance of detention order No. 21-DMK/PSA of 2018 dated 28.09.2018 ordered detention of one Zakir Hussain Mir (for short detenue) in exercise of powers conferred on him by clause(a) of Section 8 of the J&K Public Safety Act, 1978, in order to prevent him from acting in any manner prejudicial to the security of the State.
2. In terms of the instant petition it is being pleaded that the allegations/grounds of detention are vague and on mere assertions of the detaining authority no prudent man can make an effective representation against these allegations and can only be defended as permitted in statute. It is further pleaded that the detaining authority, without applying its mind and without following due procedure under Page |2 law, has passed the impugned detention order. The detenue was already in custody and there is no possibility of admitting him to bail. The copies of FIR, statement recorded under Sections 161/164-A Cr.PC, etc. were not made available to the detenue so that he could make effective representation before the detaining authority/Government.
3. Learned counsel for the petitioner has referred to the grounds of detention which reveals that the detenue was allegedly arrested with huge quantity of narcotic substance as well as illegal arms and ammunition and a case FIR No.45/2018 under Sections 7/25 Arms Act, 8/21 NDPS Act, 13 ULA (P) Act has been registered against him in Police Station, Karnah. Same is stated to have been done on the dictates of sponsoring agency which apprehends that there is likelihood that the detenue may be admitted to bail on the technical grounds. There are no compelling reasons to admit the detenue to bail, according to learned counsel for the petitioner, as he could not be admitted to bail in the case registered against him in law. Learned counsel has referred to the judgment of the Hon'ble Apex court in Dharmendra Suganchand Chelawat & Anr. Vs. Union of India & Ors. Relevant part of the said judgment is quoted as under:-
"....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 Page |3 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...."
4. Another judgment relied on by the learned counsel for the petitioner has been passed by this High Court in case Mohammad Rafiq Rather Vs. State of J&K & Ors., wherein „a question has been raised that what can be the cogent material on the basis of which a detaining authority can validly draw the satisfaction that detenue was likely to be released in near future and it was safely held that if the allegations constitute such an offence on which there is likelihood of the release of the detenue on bail, such material will be sufficient to draw the inference that there was likelihood of detenue being released in near future.‟
5. Allahabad High Court in case Jitendra Vs. District Magistrate & Ors., has also been relied on by the learned counsel for the petitioner Page |4 to substantiate his arguments. It would be advantageous to quote relevant para of the said judgment:-
"...There is another reason as to why in our judgment, the impugned detention order would be vitiated. Since the detenue‟s right to make a representation to the detaining authority was only available to him till the approval of the detention order by the Government, it follow as logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to him i.e. till the approval of the detention order by the State Government..."
6. Per contra, learned GA has submitted that the order of detention has been properly passed and the judgment of Hon'ble Apex Court in Golam Hussain Vs. The Commissioner of Police Calcutta & Ors., clearly sounded that the detention order cannot be faulted with. Relevant para is quoted as under:-
"The Court recently dismissed a similar argument in these words in Suna Ullah Bhut v. State of J & K 1973 3 SCC 60 (at SCC p. 62, paras 7 and 8):
"It is urged that the failure of the State Government to specify the period of detention introduces an infirmity in the detention of the petitioner. This contention, in our opinion, is without any force. According to sub-section (1) of Section 12 of the Act, in any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Section 13 of the Act specifies the maximum period of detention.
According to that Section, the maximum period for which a person may be detained in Page |5 pursuance of any detention order, which has been confirmed under Section 12, shall be two years from the date of detention. It is further provided that nothing in the Section shall affect the power of the Government to revoke or modify the detention order at any earlier time. It is, in our opinion, difficult to infer from the language of Section 12 of the Act that the State Government while confirming the detention order should also specify the period of detention. All that the Section requires is that if the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the Government may confirm the detention order. There is nothing in the Section which enjoins upon the Government to specify the period of detention order. The concluding words of sub- section (1) of Section 12, according to which the Government may continue the detention of the person concerned for such period as it thinks fit, pertain to and embody the consequences of the confirmation of the detention order. It is, however, manifest that the period for which a person can be detained after the confirmation of the detention order is subject to the limit of two years, which is the maximum period of detention for which a person can be detained, vide Section 13 of the Act.
Apart from the above, we are of the opinion that it is not always practicable and feasible for the State Government at the time of confirming the detention order to specify the period of detention. The continued detention of the detenue, subject to the maximum period prescribed by the Act, depends upon a variety of factors and the State Government would have to take into account all the circumstances including fresh developments and subsequent events in deciding whether to keep the detenue in detention for the maximum period or to release him earlier. It Page |6 has accordingly been provided in sub-section (2) of Section 13 of the Act that the State Government would have the power to revoke or modify the detention order at any time earlier than the expiry of two years from the date of detention."
7. From the perusal of the detention record, it transpires that the detaining authority was aware that the detenue was in custody in respect of FIR No.45/2018, yet the compelling reasons have not been indicated in the grounds of detention.
8. It is trite that prevention orders can be passed even when a person is in police custody or involved in a criminal case but for so doing, compelling reasons are to be recorded. No such reason has been recorded in the instant case. When it is so, order of detention becomes unsustainable. It shall be quite apposite to quote Para 5, 6 and 7 of the judgment of the Hon'ble Apex Court in "Surya Prakash Sharma v. State of U.P & Ors. 1994 SCC(Cri) 1691:-
"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 921. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat v. Union of India, AIR (1990) SC 1196 wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Page |7 Shaw (supra) answered the question in the following words:
"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 implied 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."
6. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority's awareness of the fact that the detenue was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment: made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail 'he may again indulge in serious offences causing threat to public order", (emphasis supplied), To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order, solely on the basis of a Page |8 solitary murder, cannot be said to be proper and justified.
7. On the conclusions as above we quash the order of detention."
9. In T.P.Moideen Koya v. Govt. of Kerala 2004(8) 106, the Hon'ble Apex Court held as:-
"that 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."
10. In view of the facts of the instant case and the law laid down by the Hon'ble Apex Court as referred above, the order of detention impugned does not sustain on the only ground referred above, therefore, other grounds projected in the petition are not required to be dealt with.
11. In the above referred backdrop, I find the order of detention No. 21-DMK/PSA of 2018 dated 28.09.2018 passed by District Magistrate, Kupwara, against the detenue is not sustainable, as such, is quashed. Detenue namely Zakir Hussain Mir S/o Syed Alam Mir R/o Nawagabra, Karnah, District Kupwara, be released from the preventive custody forthwith provided he is not required in connection with any other case/cases.
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12. Detention record, as produced, be returned to learned GA.
(Rashid Ali Dar) Judge Srinagar ____________ Muzammil. Q MUZAMIL QADIR 2019.04.23 12:09 I attest to the accuracy and integrity of this document