Jammu & Kashmir High Court
Aqueel Ahmad vs State And Ors. on 10 September, 2004
Equivalent citations: 2005(2)JKJ47
JUDGMENT S.K. Gupta, J.
1. Petitioner, Aqeel Ahmad S/O Shri Khadim Hussain R/O Hayatpura Manghar, Tehsil Haveli District Poonch has been detained in preventive custody under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 (hereinafter referred to as "the Act") by the District Magistrate, Poonch, vide his order No. 06/PSA of 2002 dated 21/09/2002 and detained in Sub-Jail Kot Bhalwal, Jammu for a period of 12 months. The detention of the detenue in preventive custody was subsequently confirmed by the Government vide order No. Home/PB-V/2300 of 2002 dated 16.11.2002 and the period was enlarged upto 24 months. The detenue, through his father Shri Khadim Hussain, has challenged the validity and propriety of the detention order precisely on the following grounds:-
1. That the order of detention has been passed by the detaining authority on imaginary grounds and in colourable exercise of its power, thus, is mala fide.
2. That there is nothing on record to show as to on what consideration the State Advisory Board had acted and satisfied itself for the purposes of detaining the petitioner for a period of 24 months, vide its report dated 16.11.2002. The order of detention does not disclose the application of mind by the detaining authority, while passing the detention order of the detenue on the material on which it is based, thus, renders the same invalid and liable to be quashed.
3. That there was no fresh ground available to the respondent No. 1, while passing the order impugned No. Home/PB-V/2003 of 2002 dated 16.11.2002 as at the relevant time, the detenue was in Jail.
4. That the detention order further does not disclose as to on whose report and on what material the detaining authority acquired satisfaction that it is necessary to keep the detenue further in preventive custody in order to abstain him from acting in any manner prejudicial to the security of the State and, therefore, the order being patently illegal, un-justified and clearly violative of right to liberty guranteed under Article 22 of the Constitution of India, is liable to be quashed.
After the admission of writ petition on 13.10.2003, various opportunities were provided to the respondents/State to file the counter. Neither the counter has been filed nor the record of detention has been made available to the Court, despite direction given vide order dated 7.5.2004. This clearly exhibits the mode and manner, the tone and tenor in which the respondent-State has behaved in this petition which is highly deplorable, as the State by non-filing the counter did not controvert the allegations raised by the detenue in the petition. The only material left with the Court is the grounds of detention which have been placed on record by the petitioner alongwith the petition.
2. Heard the learned counsel appearing for the respective parties and considered the rival contentions in context with the relevant provisions of law touching the matter in controversy.
3. The detenue had, as per the grounds of detention joined the ranks of militant outfit LET and foreigner mercenaries operating in the area in subversive and anti-national activities. He joined hands with militants and became an agent of an enemy agency ISI with the sole aim and object to interfere and disturb public peace and tranquility of the State and also hatched a conspiracy to cause murders, bring consignment of arms and ammunition, strike the Security forces to endanger the human lives. The detenue is stated to have been arrested by the Poonch Police on 21.02.2002 and one AK Rifle, 3 magazines of AK and 100 rounds were recovered from his possession which led to the registration of FIR No. 200 of 2001 Under Section 3 (5) POTA, Police Station, Poonch. It is alleged that detenue has been providing food and shelter to the militants in his house and provided information to the militants regarding movement of Army and Police in the area. The detenue further alleged to have resorted to indiscriminate killing of innocent people particularly Baldev Raj and other family members of Khater Paul in Village Mangnar. It is further stated that detenue admitted during interrogation that Abu Abdullah, the Commander of LET outfit has given him a AK 47 rifle, 3 magazines, 100 rounds besides one wireless set after the completion of the training of the weapons. The detenue is stated to be a desperate character and it will not be adequate to deal with him under normal criminal law of the land and his remaining out side is detrimental to the security of the State and, thus, became necessary to take him into custody in order to prevent him from doing subversive activities and acting in any manner prejudicial to the security of the State. The detention order in respect of the detenue for his preventive custody was issued on 21.9.2002 by District Magistrate, Poonch and stood confirmed by the Government for a period of 24 months vide order dated 16.11.2002 and the petitioner was lodged in Sub Central Jail, Kot Bhalwal.
4. The first ground taken by the petitioner to challenge the order of detention is that it is passed mala fidely and in colourable exercise of powers by the detaining authority. Though the onus to prove mala fides is upon the detenue, where an allegation is made, in an application for habeas corpus against the authority who issued the order of detention, the Court may take such allegation as uncontroverted, leading to the invalidity of the order where the affidavit-in-opposition on behalf of the State is not sworn by the authority on whose subjective satisfaction the order was passed, unless satisfactory reasons are offered why his affidavit was not available, in which case, the affidavit should be sworn by some responsible officer who personally dealt with or processed the case, or an officer who is specially entrusted with the detention cases, the detention order terms out to be illegal and invalid. The question of mala fides is to be determined with reference to the circumstances of each case. In this case, neither the counter affidavit has been filed in rebuttal to the allegations made by the detenue in his petition nor the record of the detention of the petitioner has been made available by the respondents to the Court so as to dispel the contention of the petitioner with regard to the mala fide of the order of the detention passed in colourable exercise of his powers.
5. Since the State did not file any counter affidavit nor produced the record of the detention of the petitioner-detenue, the only material left over with the Court was the grounds of detention, copy whereof has been annexed with the petition by the petitioner.
6. Adverting to the grounds of detention, it is no where indicated as to when the detenue joined the ranks of militancy and when and where he had taken the training of weapons from Abu Abdullah, the Commander LET outfit. It also does not indicate as to when the detenue provided shelter to the militants in his house and when did he resort to indiscriminate killing of Baldev Raj and other family members of Khater Paul. The grounds of detention further did not reveal as to when and where the Commander LET has given him a AK 47 rifle, 3 magazines, 100 rounds, besides a wireless set. The grounds of detention only disclose the apprehension of the detenue by the Police, Police Station Poonch on 21.2.2002 and recovery of arms and ammunition from his possession on the basis of which FIR No. 200 of 2001 Under Section 3 (5) POTA was registered at Police Station Poonch. The grounds of detention further do not reveal as to whether the detenue was still in custody and is likely to be released on bail or had already been released on bail in the aforesaid case. This clearly shows that the only material before the detaining authority, as is reflected in the grounds of detention, was the same as was available for the registration of FIR No. 200 of 2001 with the Police Station, Poonch in which the detenue is stated to have been arrested. The grounds of detention further do not disclose the material to indicate that the detenue, in case released on bail, will in future indulge himself in the activities which warrant preventive detention. Where a detenue was already in custody, there must be compelling reasons for the detaining authority for passing an order of detention against him. The detaining authority is not only required to show his awareness that the detenue was in custody at the time of passing his detention order, but he is also required to indicate that there is likelihood of his release. If it is alleged that the detention order has been passed without application of mind and is, thus, mala fide, the authority who has passed the detention order has to rebut the allegations by filing a counter affidavit. Even an affidavit filed by the successor of such authority can not be the sufficient rebuttal of such allegations. It is well settled that the order of detention without application of mind or an order made for the purpose otherwise it will be a malafide order.
7. As the State has neither rebutted the allegations of mala fide raised by the petitioner in the petition nor any record of detention has been produced in the Court, therefore, the Court is unable to have a general discussion upon the grounds of detention which has impliedly been supported and corroborated by the State by not filing the counter on behalf of the detaining authority on whose subjective satisfaction, the order of detention has been passed. No satisfactory reasons have been offered as to why counter affidavit is not forth coming, or with regard to the non production of the detention record and, thus, clearly leads to the invalidity of the order of detention, passed by the detaining authority. Further, when a challenge is made to a detention order passed by the State, on irrelevant and vague grounds as being the basis for detention, which having not been controverted by filing a counter affidavit, the detenue is entitled to be released and, to that extent, the order is subject to judicial review only upon the relevancy of the grounds.
8. It is imperative upon the State to explain relevance, reasonableness and rationale in the detention of the detenue, by filing a counter affidavit controverting the challenge made to the grounds of detention, passed by the detaining authority. In the absence of counter affidavit by the State and non production of the record, the truth and correctness of the grounds of challenge, made in the petition, cannot be verified by the grounds of detention, so as to reach a conclusion as to whether the order of detention passed on subjective satisfaction of the detaining authority, after due application of mind, is valid or invalid, required to be confirmed or quashed. The Court is virtually left with no material to assess or estimate as to whether order of detention is passed in good faith and had relevant grounds having direct nexus with the satisfaction of the authority passing the detention order. The only presumption drawn under such circumstances would be that the order passed by the District Magistrate, Poonch, is arbitrary and without application of mind and passed on vague and irrelevant grounds.
9. Whether it is incumbent upon the State in a Habeas Corpus petition, where a rule of nisi has been issued, to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but also in accord with the requirements implicit in Clause (5) of Article 22 of the Constitution. It is contended by Mr. M.S.Bhat, learned counsel appearing for the petitioner, that detaining authority must file a return and set out the facts relied upon as constituting valid and sufficient grounds of detention of persons alleged to be legally detained. The detaining authority must file a counter affidavit and set forth clearly and with sufficient particularity, the facts upon which the State relies. His further contention is that the consequence of non filing of return would entitle the Court to declare the detention as illegal. In view of this implication, a duty is imposed upon the State to justify the detention where it is challenged on the ground of mala fide, non application of mind and passed in colourable exercise of powers, before a Court empowered to determine the legality or otherwise of that detention. Where State has not filed any counter affidavit explaining the facts sufficiently and particularly, on the basis of which detention order has been passed, when specifically challenged in the petition as mala fide, renders the detention order invalid and illegal. This is a view taken by the Apex Court in case entitled Niranjan Singh v. State of M.P. AIR 1972 SC 2215.
10. It was next contended by Mr. M.S.Bhat, learned counsel appearing for the petitioner, that the order passed by the detaining authority is without application of mind. For facility of reference, the detention order passed in respect of preventive custody of the petitioner by the detaining authority dated 21.09.2002 is reproduced herein under:-
"OFFICE OF THE DISTRICT MAGISTRATE POONCH.
ORDER NO:- 06/PSA of 2002 Dated 21 Sept. 2002 Whereas, I Dr. Pawan Kotwal, IAS, District Magistrate Poonch am satisfied that with a view to preventing Akil Ahmed S/O Khadim Hussain R/O Hayatpura Mangnar Tehsil Haveli District Poonch from acting in any manner prejudicial to the security of the State, it is necessary to do so;
Now, therefore, in exercise of the powers conferred by Section 8 of the J&K Public Safety Act, 1978, I Pawan Kotwal, IAS District Magistrate Poonch do hereby order that the said Akil Ahmed S/O Khadim Hussain R/O Hayatpura Mangnar Tehsil Haveli District Poonch be detained at Sub Jail Kote Bhalwal, Jammu under J&K Public Safety Act 1978 for a period of 12 months.
Dated:- 21 Sept., 2002.
Sd/-
(DR. PAWAN KOTWAL) IAS, DISTRICT MAGISTRATE, POONCH Forwarded in duplicate to the Sr. Supdt. of Police, Poonch for execution of the detention orders provided under Section 9 of the J&K Public Safety Act 1978. Notice of the Order shall be given to Akil Ahmed S/O Khadim Hussain R/O Hayatpura Mangnar Tehsil Haveli District Poonch by reading over the same in the language he understands. A copy of the executed warrant with the endorsement be returned to this office for reference and record.
Sd/-
(DR.PAWAN KOTWAL) IAS, DISTRICT MAGISTRATE, POONCH NO. DMP/J/1875-82 Dated 21/09/2002"
11. A plain reading of the aforesaid order shows that it does not refer to any material which formed the basis for the detaining authority to arrive at the satisfaction that it is necessary to prevent the detenue from acting in any manner prejudicial to the security of the State by keeping him in preventive custody. The grounds of detention no where indicate that the detenue had applied for a bail in case FIR 200/2001 of Police Station, Poonch in which he was taken in custody and had been released prior to the passing of the detention order. The grounds of detention further don't disclose that the detenue arrested in FIR 200 of 2001 is likely to be released on bail and would again indulge in subversive activities prejudicial to the security of the State, if not taken in preventive custody. This clearly shows that the detaining authority was not aware of the fact that the detenue has already been released on bail in the aforesaid FIR vide Court order dated 13.9.2002 and, thus, shows that lack of application of mind. The authority while making detention order must show his awareness regarding the fact that detenue is in custody and: if he is released on bail he may indulge in prejudicial activities and if he had already been released on bail is likely to indulge in subversive activities prejudicial to the security of the State, and failure to do so renders the detention as illegal, as has been done by the Apex Court in case entitled N. Mehra Raina v. Govt. of Tamil Nadu, AIR 1989 SC 2028. The allegations of mala fide and non application of mind can only be rebutted by a person who passed the detention order by filing counter affidavit and none else. It becomes more worse when the record of detention is not made available to the Court, despite directions to facilitate the Court to determine the validity or invalidity of the detention order on the touch stone of the challenge based on mala fide, irrelevant and vague grounds and non application of mind by the detenue in his petition. The detaining authority has no where mentioned in the detention order as to what was the material before him which satisfied him that the detention of the detenue was necessary and, thus, renders the detention order, having been passed without application of mind as illegal and invalid.
12. That apart, the failure of the detaining authority to show about the release of the detenue on bail in the aforesaid detention order clearly shows his unawareness about the factual matrix of the matter more particularly, in the absence of any explanation by filing a counter affidavit renders the order as colourable when there is no proximate nexus between the preventive action and the past activity of the detenue, the order of detention deserves to be struck down. The order does not show awareness of the detaining authority that the detenue has already been released on bail in the aforesaid FIR and, thus, would evidently make the order of detention to be vitiated, on account of non-application of mind. In other words, the order of detention, not referring to any material giving rise to the satisfaction to the detaining authority, reveals lack of proximity and rationale connection between the activities of the petitioner and the conclusion that his detention was necessary at the time of passing the order, and on this ground also the order of detention becomes invalid and illegal on account of non application of mind.
13. For the reasons aforesaid, this petition is allowed and the order of detention bearing No. 06/PSA of 2002 dated 21.9.200 and confirmed by respondent No. 1 vide Government Order No. Home/PB-V/2300 of 2002 dated 16-11-2002 is hereby quashed and the respondents are directed to release the detenue forthwith, if not detained in any substantive offence(s).