Jammu & Kashmir High Court - Srinagar Bench
Mohammad Hanief Guroo vs Ut Of J&K And Others on 21 October, 2023
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 195/2023
Pronounced on: 21.10.2023
Mohammad Hanief Guroo .... Petitioner/Appellant(s)
Through:- Mr. Bilal Ahmad Khan, Advocate.
V/s
UT of J&K and others .....Respondent(s)
Through:- Ms. Maha Majeed, Assisting counsel
vice Mr. Mohsin Qadiri, Sr. AAG.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. In this petition, Mohammad Hanief Guroo S/o Sonaullah Guroo, R/o Rabitar, Gundi Roshan, Ganderbal, seeks quashing of his detention order issued by the District Magistrate, Srinagar, vide Order No. DMS/PSA/47/2023 dated 10.05.2023.
02. By virtue of the impugned detention order, the District Magistrate, Srinagar, in exercise of powers under Section 8(4) of the J&K Public Safety Act, 1978, had detained the detenu under the provisions of Public Safety Act to prevent him from acting in any manner prejudicial to the maintenance of public order. This order of detention has been assailed by the detenu through his brother-Javeed Ali Guroo.
03. The detenu, being aggrieved of the detention order, has challenged its legality and validity on the grounds that; (i) the detenu was arrested in FIR No. 18/2023 for commission of offences under Sections 452, 380, 411 of IPC and he was already granted bail in the said FIR but the Detaining Authority has not noticed the same, while passing the order WP (Crl) No. 195/2023 Page 2 of 5 of impugned detention; (ii) the impugned order of detention is without any application of mind and the same is only based on mere false assertions;
(iii) the Detaining Authority has not arrived at a subjective satisfaction, while passing the order of detention; (iv) there is no nexus between the cases mentioned in the grounds of the detention with the detenu, as the same are only false assertions; (v) the allegations as reflected in the grounds of detention are vague and do not justify the detention of detenu and the impugned detention order suffers from material irregularities, as the same has not given any justification or cogent reasons as to how the activities of the detenu are prejudicial to the maintenance of public order;
(vi) All the relevant material relied upon by the Detaining Authority has not been provided to the detenu, which disabled him from making an effective and meaningful representation.
04. The respondents have filed their counter affidavit and also produced the detention record. It is submitted that the detenu, have been found to be involved in activities of the nature which were prejudicial to the maintenance of public order. The detenu was also found involved in activities which were anti-social and disturbing the public peace and order. The Deputy Commissioner, Srinagar, examined the dossier and other relevant material submitted by the Police and after finding that the preventive detention was necessary and passed the order of detention dated 10.05.2023. It is further submitted that the grounds of detention are precise, proximate, pertinent and relevant and clearly substantiate the subjective satisfaction arrived at by the Detaining Authority.
05. Heard learned counsel for the parties and perused the record also. WP (Crl) No. 195/2023 Page 3 of 5
06. Perusal of the record reveals that the detenu has been detained for his activities which were found to be disturbing the public peace and order. In the grounds of detention, it has been stated that the detenu was indulging in anti-social activities and was looking for opportunities to commit theft and burglary. The detenu was also considered to be anti- social element gathering proximity with the disgruntled lot and has been found sharing company with chronic miscreants and thieves to incite the local youth towards theft incidents.
07. The Detaining Authority in the grounds of detention have relied on the fact that the detenu was arrested in FIR No. 18/2023 u/s 457 and 380 of IPC but there is total non-application of mind by the Detaining Authority while passing the order of detention, as it has not shown any awareness to the fact that the detenu has already been released on bail on 03.05.2023. This order has been placed on record and no compelling reasons resorting to his detention under the Public Safety Act have been mentioned.
08. The Hon'ble Apex Court in 'Anant Sakharam Raut vs. State of Maharashtra and another', 1987 AIR SC 137 had held as under:
"05. We do not think it necessary to go into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made aware at the time the detention order was made that the detenue had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 & 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under-trial prisoner, that he was arrested in WP (Crl) No. 195/2023 Page 4 of 5 connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention."
09. The Detaining Authority, while passing the order of detention on 10.05.2023 was not aware of the fact that the detenu had already been granted bail on 03.05.2023 and therefore, under these circumstances, impugned order suffers from total non-application of mind by the Detaining Authority and the detention of the detenu is vitiated and same needs to be quashed.
10. In Rushikesh Tanaji Bhoite V. State of Maharashtra & others, (2012) 2 SCC 72, It was held that;
"8. It would be, thus, seen that the order releasing the detenu on bail in the crime registered on August 14, 2010 and the order relaxing the bail condition were passed by the Judicial Magistrate, 1st Class, Dharanga on much before the issuance of detention order dated January 10, 2011. However, the detention order or the grounds supplied to the detenu do not show that the detaining authority was aware of the bail order granted in favour of the detenu on August 15, 2010.
9. In a case where detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction."WP (Crl) No. 195/2023 Page 5 of 5
Thus, non-placing and non-consideration of this material fact of grant of bail order itself vitiates the subjective decision of detaining authority.
11. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed and the detention Order No. DMS/PSA/47/2023 dated 10.05.2023 passed by the District Magistrate, Srinagar, under which detenu- Mohammad Hanief Guroo S/o Sonaullah Guroo, R/o Rabitar, Gundi Roshan, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case.
12. Detention record be returned to learned counsel for the respondents by the Registry forthwith.
(Sindhu Sharma) Judge Jammu:
21.10.2023 Michal Sharma Whether the judgment is speaking : Yes/No Whether the judgment is reportable : Yes/No