Jammu & Kashmir High Court - Srinagar Bench
Ghulam Qadir Ganie vs State Of J&K And Ors on 28 March, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No. 682 of 2006 Ghulam Qadir Ganie Petitioners State of J&K and Ors Respondents !Mr. Mir Shafaqat Hussain, Advocate ^Mr. Shah Aamir, Advocate Mr. A.M.Magray, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 28/03/2011 :J U D G M E N T:
Petitioner was ordered to be detained by District Magistrate, Pulwama in exercise of powers conferred upon him under Section 8 of Jammu and Kashmir Public Safety Act (for short the Act of 1978). The order is reproduced as under:
Government of Jammu & Kashmir District Magistrate Pulwama Order No.:-32/DMP/PSA/04 Dated 14.10.2004 Subject:- Detention under J&K Public Safety Act, 1978.
Whereas on the basis of grounds of detention placed before me by SSP Pulwama/CID, Srinagar No.CS/PSA-04/37 dated 18.09.2004, I am satisfied that with a view to prevent Sh. Gh. Qadir Ganie S/o Gh. Mohd. Ganie R/o Urpora Nagbal Tehsil Shopian, District Pulwama from acting in any manner which is prejudicial to the security of the State, it is necessary so to do. Now, therefore, in exercise of powers conferred by clause (a) of Section 8 of J&K Public Safety Act, 1978, I, District Magistrate, Pulwama hereby direct that the said Sh. Gh. Qadir Ganie S/o Gh. Mohd. Ganie R/o Urpora Nagbal Tehsil Shopian, District Pulwama be detained and lodged in District Jail Kathua for a period upto 24 months.
Sd/-
District Magistrate Pulwama This petition is filed by the petitioner almost after two years of issuance of detention order seeking quashment of the detention order at its pre-execution stage.
This Court on 21.09.2006 while issuing notice to other side, stayed the execution proceedings.
Respondents 1, 3 and 4 filed reply affidavit. It is stated that the petitioner was involved in serious offence for which case FIR No.106/04 was registered against the petitioner under Section 13 Unlawful Act, 121-A, 212 RPC. It is also pleaded in reply affidavit that the report under Section 173 Cr.P.C has been filed against the accused persons including petitioner on 24.07.2005.
Heard learned counsel for the parties. Considered the matter.
Learned counsel for the petitioner submitted that FIR has been wrongly mentioned in counter affidavit as 06/04 which infact is 106/2004 in which petitioner was arrested and was granted bail on 22nd September, 2004 and thereafter challan was filed against him and he has been acquitted of the charges by the trial Court in this FIR. Learned counsel further submitted that after issuance of the detention order on 14.10.2004, though the petitioner was available and was facing trial before the learned trial Judge, no steps were taken by the respondents to detain him in pursuance of the impugned detention order. Learned counsel also submitted that this writ petition is filed in the year 2006 almost two years after issuance of detention order and it cannot be said that there is any live link between the alleged activities and the petitioner. Learned counsel submitted that detention order deserves to be quashed.
Mr. Shah Amir, GA appearing vice Mr. A.M.Magray, Sr.AAG submitted that the petition deserves to be dismissed as in view of the grounds of detention the activities of the petitioner are prejudicial to the security of the State and such a person cannot be allowed to remain at large.
True it is that the statutory authority can order for detention of a person if he is satisfied that his activities are prejudicial to the security of the State. The detention order, however, has to pass the tests laid down in Article 21 and 22 of the Constitution of India and also provisions of the Act of 1978. Petitioner was arrested in FIR No.106/2004 and was granted bail on 22.09.2004. Immediately thereafter detention order was issued. Petitioner was send up for trial in FIR No.106/2004 but no steps were taken to detain him in pursuance of the impugned detention order. It can be safely at this distance of time said that there is no live link between the activities of the petitioner and the allegations which are mentioned in the grounds of detention. The link having snapped there can be no cause in the law to take the petitioner into preventive custody in pursuance of detention order.
The detention order deserves to be quashed on yet another ground, in as much as, it suffers from lack of application of mind. The detention order has been based on the grounds of detention provided by the SSP Awantipora to the detaining authority. In law it is detaining authority who has to consider the material produced before it by all agencies including police agency and if satisfied he is to formulate grounds of detention. Grounds of detention have been formulated by the police agency in this case.
This petition deserves to be allowed on yet another ground that detaining authority itself has fixed period of detention which has been held to be illegal by the Honble Supreme Court in case titled Makhan Singh Tarsik v. State of Punjab reported in AIR (39) 1952 SC page 27, relevant para whereof is reproduced as under:
4. Whatever might be the position under the Act before its amendment in February, 1951, it is clear that the Act as amended requires that every case of detention should be placed before an Advisory Board constituted under the Act (S.9) and provides that if the Board reports that there is sufficient cause for the detention the appropriate government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit (S.11).
It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate General, however, urged that in view of the provisions in S.11(2) that if the Advisory Board reports that there is no sufficient cause for the detention the person concerned would be released forthwith, the direction in order dated 30.7.1951 that the petitioner should be detained till 31.03.1952 could be ignored as mere surplus age. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioners case when it is placed before the Advisory Board. It cannot be too often emphasized that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. For the above stated reasons this petition is allowed. Detention order No. 32/DMP/PSA/04 dated 14.10.2004 is quashed.
(Muzaffar Hussain Attar) Judge Srinagar 28.03.2011