Jammu & Kashmir High Court
Mushtaq Ahmad Bhat vs State Of J And K And Ors. on 30 August, 2003
Equivalent citations: 2003(3)JKJ669
JUDGMENT Syed Bashir-ud-Din, J.
1. Subject Mushtaq Ahmad Bhat, was detained on 24.1.2000 under Order DMS/PS/153 dated 17.1.2000 for a period of 24 months under Section 8 of the Jammu and Kashmir Public Safety Act 1978. This order expired on 23.1.2002. During the above period of detention, detenu was lodged in Kotbulwal Jail Jammu from 24.1.2001 to 1.7.2000 and from 2.7.2000 (on being shifted to Srinagar to face trial in a regular case in the court of law at Srinagar), he was lodged and detained in Central Jail Srinagar till 14.1.2002, when on 15.1.2002 he was shifted back to Jammu Jail under orders of the Government. This detention order dated 17.1.2000 (expired one) and consequent detention was challenged by the detenu in H.C. Petition 50/2000. This petition was dismissed as infractuous after the detenue served out the whole ordered period of detention. Even earlier to that detenu has been in detention and the detention order thereto had been challenged in H.C. Petition 8/2002, which petition was disposed of after the detention order, subject of H.C. Petition 8/2002 was revoked by the authorities. Although, the detenue was not release from custody at any point of time.
2. On 8.2.2002 District Magistrate Srinagar passed fresh detention order, (DMS/PSA/76 dated 8.2.2002, detaining him again under Section 8 of the J&K Public Safety Act with a view to prevent him from acting in any manner prejudicial to the security of the State on grounds given in Annexure-A to the petition and also available on record in detention file. This order is under challenge on grounds stated in the petition.
3. The detenu's counsel submits that the only grounds which he is to canvass to challenge the detention and press the petition are:-
4. First that the grounds are vague. Detenue has not indulged in any activities whatsoever to undermine the security of the State. He has been throughout in Jail. The allegation that the detenue during "Mulaqats" gave instructions to relatives, and friends regarding carrying out of the militancy activities is farce and not based on any material. It is share ipsi dixit of the detaining authority. The respondents on one or other pretext and by hook or by crook are just interested to continue with his detention respective of the merits of his detention case. And Second, the counsel contends that the material and documents referred in the grounds and the basis of the impugned order have not been at all supplied to the detenue. Thereby, the detenue is prejudiced to make representations against the detention to the Government in absence of communication of the grounds.
5. Counter has been filed on behalf of respondents by District Magistrate Srinagar, who has custody of and access to the record. The detention order is stated to have been passed on application of mind under Section 8 of the J&K Public Safety Act. The grounds of detention speak for themselves about the cogency of material grounds and satisfaction of the detention authority. The grounds of detention have also been read over to the detenu, who had an opportunity to make representation against the detention. The detenue has been explained the contents of order and the grounds in Kashmiri and Urdu, the language he understood. The grounds alone have been relied for detention in question.
6. Addl. Adv. General Mr. Khan has made submissions in line with and in accord with the above contentions put forth in the counter. The detention record is also made available.
Para 3 (1) of the petition reads as under:-
(f) That the so-called grounds of detention do not on the face of it, indicate any activity, which could be said to be prejudicial to the security of the State in order to warrant detention of the detenue. Mere alleging that the detenue had been communicating messages and programmes to leaders of various militant outfits through detenue's friends and relatives coming to meet the detenue on 'Mulaqat days' for escalating militant activities in the Valley, is totally vague and based on imagination. There is no proof or evidence in support of this allegation given by the respondents while passing the impugned detention order. The detention order in this view of the matter has clearly been passed in a most mechanical and perfunctory manner rendering the same illegal, unconstitutional and therefore, liable to be quashed."
7. In reply to this ground of challenge in para 3(f) of the counter filed by District Magistrate Srinagar after reference to two cases of supreme Court, it is stated that the order of detention does not suffer from any infirmity or illegality and detail submissions thereto are to be made at the time of arguments. The contention is noted herein before, as averred in the counter, re-enforced by oral submissions of the AAG.
8. File of H.C. Petition No. 8/2002 as also other available record shows that detenue was initially detained on 24.1.2000 under orders of District Magistrate Srinagar, which order was under challenge in Habeas Corpus Petition No. 8/2002. However, this detention order was revoked and substituted by a fresh detention order dated 8.2.2002, which is under challenge in this petition. A reading of grounds of detention shows that during the earlier detention period, detenue was lodged in Kotbulwal from 24.1.2000 to 1.7.2000 and his lodgement was changed and detenue shifted to Central Jail Srinagar. This was done following orders of Sessions Judge Srinagar, in court case(s) pending against him in the court of District and Sessions Judge, Srinagar. As such from 2.7.2000 to 14.1.2002, detenue was lodged in Central Jail Srinagar. During these spells of his lodgement at Jammu and Srinagar, it is stated that the detenue has been instigating and briefing associates of his out-fit through under-trials, and friends and relatives who visited him on 'Mulaqat days' in the Jail not to shun the path of militants and to continue the arms struggle, cause panic and terror. The under trials friends and relatives who visited him in 'Mulaqat' days conveyed his messages to militants and workers of the organization (Hizbullah). Detenue, "a highly motivated fanatic Muslim" has been found indulging in pro-Islamic propaganda and also inviting the detenues and other under trials lodged in the Central Jail, Srinagar to prepare themselves for sacrifice and that the detenue also during his appearance in court cases at Srinagar, used the opportunity to convey the above message to his out-fit. On the message being received, the outfit indulged in various terrorist activities. These allegations are grounds on which the consequent detention order is based.
9. Admittedly, the detenue has been in custody all along for last over so many years as conceded by the Addl. AG. Not only at the material time he was jailed, but it is stated that the detenue has not been out of the jail during last so many years and as per parties own admission for last over five years. The detention under challenge as seen from the above reading of the grounds is based on activities, attributed to the detenue which he carried out through his friends and relatives by imparting instructions to them during 'Mulaqat days' and in the meetings he had with the under-trials and other concerned. The members of the out-fit represented by the detenue are stated to have been given messages through the persons who met him on 'Mulaqat days' and also while meting the people in the court premises while attending the court cases at Srinagar. This abstracts omnibus and too generalised open ended statement in the grounds by the District Magistrate Srinagar is not supported by any material, whatsoever. There is nothing on record to show that any material, statement, or document was before District Magistrate to come to such conclusion. No statement or report either of the Superintendent of Jail or any other officer of the Jail or persons who met the detenue during 'Mulaqat days' or Police Officer/personnel who took him to Sessions Court Srinagar to attend cases or any under trial or any other person pointed in the grounds, is on record. There is no reference even obliquely to anything of the sort in any document or material on record. Mere saying, bereft of any supporting material or documents, that the grounds prop up on facts is not true. In the background that the detenue has been all through in detention continuously for last several years under the supervision, vigil and control of the State Government and its authorities, bare omnibus recitation in the grounds that the detenue indulged in activities as attributed to him during detention and that too in jail and in rigorous custody of authorities is not at all confidence inspiring. If the District Magistrate came to the conclusion, as above, then definitely given the very nature of allegation and grounds, it has to be based on some report, statements, document or material, which is not the case here. The District Magistrate it appears in the zeal and zest to continue with custody of detenue in jail has not looked out for his satisfaction to any material, document, report, etc. on record. The satisfaction drawn appears ipsi dixit of detaining authority, rather than an out-come of consideration of any material, document, statements, report etc on record.
10. Now in such circumstances, in absence of any material, report, record etc, as basis for detention, can the satisfaction of the detaining authority aid to be legal, proper and justified.
11. In Surya Prakash Sharma v. State of U.P. and Ors., 1994 SCC (Cri)1691, while examining the question in what circumstances, a preventive detention can be ordered if a person is already in custody, the Apex Court, besides emphasising awareness of the factum of detention of the detaining authority observed:-
"There should be compelling reasons justifying such detention. The compelling reasons in the context of person already in custody is started to imply that "there must be cogent material" before the detaining authority on which its satisfaction is based as the detenu being likely to be released in near future and that his release from custody, he would indulge in prejudicial activities. The question prejudicial activities is to be seen in the context of antecedents, activities of detenue and to prevent from engaging him in such activities. The satisfaction of the detaining authority on this count has to be proper and justified."
12. In Kshetra Gogoi, v. State of Assam., AIR 1970 S.C. 1964, in the context of making a fresh detention order on the expiry of previous detention order, it is observed that when the fresh order besides the grounds mentioned in the expired order referred to one more ground that the detenue his detention under the expired order had been maintaining links with his associates who had gone under-ground through his friends and relatives, the court observed that it is very difficult to appreciate how a person in preventive custody could continue to maintain the links when his associates outside jail who had gone underground, even through his friends and relatives. If the detenue was able to maintain such links, it casts a sad reflection on the persons in charge of him while he was in custody and in any case, it would appear that this detention would serve no useful purpose. It is in fact very doubtful whether any such contacts would possibly have been maintained. AIR 1969 SC 43 Hadibandhu Dass v. District Magistrate Cattack and Anr. has been referred for the above observations and to further say that fresh facts are to arise after the expiry of the detention order.
13. In Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, Commissioner of Police, Ahmadabad and Anr., AIR 1989 S. C. 2265 in the context of subjective satisfaction of the detaining authority, it is observed that law of preventive detention is hard law which has to be strictly gone through and applied with circumspection rationally, reasonably and on relevant materials. The detenue's rights and privileges as a free man cannot be unnecessary curbed. The law of preventive detention cannot be used merely to clip the wings of an accused who is involved in a criminal case(s) and to whom the administration does not want to come out of the jail for one or the other reasons. Such a person can be deprived of liberty only in compliance with the procedure established by law as enshrined by Article 22 of the Constitution of India and in this part of the country as further regulated by provisions of Jammu and Kashmir Public Safety Act.
14. In the totality of facts and circumstances, the case viewed thus shows, that the detention order is legally infirm. On judicial reviews the satisfaction of the detaining authority to pass the impugned detention order and the consequent preventive detention is not justified and proper as it is not based on any cogent material, documents, statements, report, etc. The detaining authority appears not to have drawn satisfaction from any material/documents on record, leaving the question of sufficiency or otherwise of such satisfaction to the detaining authority.
15. Though the impugned detention order DMS/76 dated 8.2.2002 is not available on the record of the court file, as same appears not to have been filed by either the petitioner or the respondents, but the detention file maintained by the Home Department bears the detention order. This order reads as under:-
"Whereas, I, Abdul Hamid, IAS District Magistrate Srinagar, am satisfied on the basis of records received from SSP CID of Kashmir, that with a view to prevent Shri Mushtaq Ahmad Bhat...."
16. Now what this record is from which the District Magistrate speaks of having drawn satisfaction for detention, in question is no where stated or spoken. The words 'on the basis of the records received from SSP CID, of Kashmir suggests that there has been some material, report etc. made available to the District Magistrate Srinagar on which the District Magistrate has drawn the satisfaction.
17. In counter, such records are not spoken to. Instead in counter it is stated that the satisfaction has been drawn as given in grounds of detention. The grounds of detention no where point out to any material report, or record in this behalf. The memo of grounds of detention is silent on this aspect of the case. It only in omnibus terms states that prejudicial activities of the detenue as referred in the grounds are the basis for ordering his fresh detention, notwithstanding, being in custody previously under the detenue has been communicated the grounds of detention within meaning of Section 13 of J&K Public Safety Act and Article 22(5) of the Constitution.
18. In Sophia Gulam Mohd. Bham v. State of Maharashtra and Ors., AIR 1999 SC 3051, the Apex court observed:-
".... 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 detenu 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 detenu 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....."
19. In Naseer Ahmed Sheikh v. Additional Chief Secretary Home and Anr., (1999 SLJ), a Division Bench of this Court observed:
".... The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the report made available to the detaining authority by the concerned SSP. No where is it pleaded much less shows that the copy/copies of these reports of the police on which the detaining authority based its satisfaction to pass the detention order were supplied/ provided to the detenu so as to enable him to make an effective representation against the order."
20. Two aspects of the case which merit to be contextually taken note of are that the detenue is facing trial before Courts of law in FIR 558/83 under Sections 447, 153A, 120B RPC, registered at P/S Kothibag, FIR 654/87 under Section 3/4 TADA Act, registered at P/S Shergari and FIR 240/91 under Section 3/4 TADA, registered at P/S Kanacheck Jammu, at Srinagar and Jammu. In none of these cases, as even conceded by AAG, detenu accused has applied for bail much less granted bail.
21. The other facet of the case which also may have some bearing on the case is that the accused is stated to have been all along during previous detention ailing and suffering from serious kidney and ophthalmologic problems is treated by the Doctor(s) through jail authorities. The mention of this circumstances may have some effect as it is stated in ground 3 (1) of the petition as reinforced by the submission of the detenues counsel that the detenues detention at Srinagar or Jammu has been because of the health reasons as recommended by Sr. Medical Officer at Srinagar/Jammu and as also he had to face trial in regular cases at either places rather than at the option of the detenue to carry out the adversely spoken alleged activities basis on the impugned detention order. Detenu had no say in his lodgement at Srinagar or Jammu. This allegation is not controverted except to say that basic medical facilities are being provided to the detenu for treatment of his ailments.
22. The above aspects of the case have to be considered in the context of the in-Jail alleged activities of the detenue, the basis of impugned order and the consequent detention at the expiry of the period of detention ordered earlier, without releasing the detenue from captivity.
23. In the above view of the matter, the impugned detention order No. DMS/PSA/76 dated 8.2.2002 and the consequent detention is vitiated, and hence quashed. Respondents detaining authority/officer having physical corpus of the detenue Mushtraq Ahmad Bhat S/o Ghulam Qadir Bhat. R/o Kashi Mohalla Ziarat Batmaloo, aged 35 Years, are/is directed to release him and set him at liberty forthwith provided he is not required in any other case, offence or matter.
24. Copy of this order be given to detenue free of cost. Registry to take follow up action. Detention record returned to Mr. M. M. Khan, AAG in open court.