Jammu & Kashmir High Court
Maroof Khan vs State Of Jammu And Kashmir And Ors. on 13 December, 2007
Equivalent citations: 2008(1)JKJ493
Author: Virender Singh
Bench: Virender Singh
JUDGMENT Virender Singh, J.
1. Through the instant petition, petitioner Maroof Khan S/O late Haji Atta Ullah Khan, R/O Village Mohra Bachal, Tehsil: Surankote, District: Poonch, through his real brother is praying for quashing of the detention order (Annexure-'C') dated 30-01-2006, whereby which he has been detained under Section-8 of the Jammu and Kashmir Public Safety Act, 1978 (for brevity to be referred to as 'the Act').
2. Pursuant to notice, the respondents have filed the objections/reply through the District Magistrate, Jammu (Respondent-2).
3. I have heard learned Counsel for both the sides and with their assistance perused the petition, other documents attached thereto and the objections/reply filed by the respondents. During the course of arguments, detention records were also shown to me.
4. The impugned order of detention is assailed on many fold grounds, including an ordinate delay in execution of the detention order. It was passed on 30-01-2006 and not executed till 04-09-2006. According to the petitioner, this huge delay goes unexplained by the State agency and, as such, it vitiates the order of detention.
5. In order to strengthen the case of the petitioner on the aforesaid aspect, Mr. Siddiqui, has relied upon the following judgment(s) of Hon'ble Apex Court and this Court;
1. T.A. Abdul Rahman v. State of Kerala and Ors.
2. K.P.M. Basheer v. State of Karnataka
3. Mohammad Ashraf Parray v. State HCP No. 528/2006, date of decision : 24-05-2007.
6. The other law pointed by Mr. Siddiqui is that the petitioner was already detained in 2003 under 'the Act on the same grounds and he continued to remain in detention for long 24 months (the total period prescribed under the Act) which expired in 2005. The fresh order is passed on the same stale grounds. According to him, it is, in fact, replica of the grounds of detention of the earlier order of 2003 and on the face of it, it speaks volumes of non-application of mind. Mr. Siddiqui submits that even if the order of detention comes to an end by revocation, through quashing or by expiry of period of detention, there must be fresh facts for passing a subsequent order. But in the case in hand, so fresh ground has been depicted. He has drawn the attention of this Court to both the grounds of detention viz one of year 2003 and the fresh one. In support of his contentions on this count, he has relied upon the following judgment of Hon'ble Supreme Court;
Chhagan Bhagwan Kahar v. N.L. Kalna and Ors. .
7. Mr. Siddiqui, has assailed the impugned order yet on another aspect submitting that the petitioner could not be detained on the ground for which a criminal investigation was already being carried out. In all fairness, the State should have left it to the court concerned to pass the appropriate order on the basis of the challan after completion of investigation. He contends that the petitioner was booked in a case under Sections 302, 307,120B, 153A, 121A, RPC, Section 2/3 of Prevention and Suppression of Sabotage Act and Section 3 of Prevention of Terrorism Act, and remained in custody along with his co-accused for a considerable period. During this period he was detained under 'the Act' in Feb. 2003 for a period of two years. The challan in the aforesaid criminal case was presented before the court concerned on 14-09-2006 and ultimately all the accused were discharged vide judgment dated 30-10-2006 (Annexure-'A'). The impugned order is executed on 4.9.2006. According to him, the case registered against the petitioner and his co-accused was very weak in its nature and the State was in know of the fact that it would not be in a position to even prove it prima facie for the purposes of framing of the charges. Therefore, before that stage could come, the impugned order was got executed. This is misuse of official powers. According to Mr. Siddiqui, even otherwise, two parallel proceedings were initiated simultaneously on the same set of allegations which is bad and on this ground also, the impugned order of detention deserves to be quashed. In support of his contentions, he has relied upon the* following judgment of Hon'ble Apex Court;
Biram Cliand v. State of Uttar Pradesh and Ors.
8. On the basis of aforesaid submissions, Mr. Siddiqui prays for the relief sought herein which is opposed by Mr. Salathia.
State's stand:
9. Mr. B.S. Salathia, learned Addl. Advocate General, submits that the petitioner is activist of an anti-national outfit (L.e.T) and if one goes by the flash back of his activities, they are highly prejudicial to the maintenance of security of the State. According to him, the impugned order is passed by the respondent No. 2 after verifying all the facts. It is based on subjective satisfaction of the detaining authority and unless there is non observance of the procedure as envisaged under 'the Act' is highlighted, no substantive right can accrue to the detenue to ask for quashing of the order of detention.
10. Mr. Salathia, then submits that involvement of the present petitioner in a criminal case is one aspect of the matter and passing of the detention order is altogether on different footings. The authority concerned after taking into account the entire dossier of the petitioner passed a fresh order and, therefore, it cannot be made the subject-matter of attack simply on the ground that is replica of earlier grounds of detention. The activities of the petitioner had not changed over night and once the detaining authority found that he was involved that his remaining at large would be a threat to the security of the State, the fresh order of detention could be passed. According to Mr. Salathia, his discharge vide judgment dated 30-10-2006 would also not advance his case at all as the learned trial court did not find the material sufficient for the purposes of framing the charge. The evidence in criminal case was collected by prosecution agency with regard to specific offences for which the petitioner and his co-accused were booked and it has no effect on individual dossier prepared qua the petitioner which needs appreciation independently.
11. However, Mr. Salathia, after going through the objections/reply filed by the State agency (respondent-2), very fairly admits that no explanation is coming forthwith with regard to the delay of about eight months in getting the order of detention executed.
Discussion:
12. After hearing the rival contentions of the either sides and going through the records, in my considered view, the impugned order of detention which is challenged initially on the ground of unexplained inordinate delay in its execution vitiates the order of detention. A duty is cast upon the detaining authority to explain the delay unless they urge execution well in time. So, let us first of all see, as to whether there is a delay in execution of the detention order or not. If so, then the next question would arise, as to whether it has been explained or not.
13. Admitted position is that the order is passed on 30-01-2006 and the same was executed on 04-09-2006. So there is admittedly a delay of more than eight months in execution of the detention order.
14. Let us now enter into discussion with regard to explanation, if any, is coming forth from the side of the detaining authority in executing the detention order. Going by the counter there is no explanation at all much less convincing explanation. How respondent-2 responds to this aspect in his counter is as under:
The petitioner was ordered to be detained by deponent in pursuance to Order No. 1/PSA of 2006 dated 30-1-2006, as his activities were found highly prejudicial to the maintenance of security of the State. The detention order and grounds of the detention were got duly served upon the detenue while executing the detention order by Inspector Dewakar Singh SHOP/S City. As per execution report received from the Police Authorities, the contents of detention warrant and grounds of detention were read over and duly explained to the detenue in Urdu language, which he fully understood. It is further submitted that while serving the detention order the petitioner had also been informed that he may make representation to the Government against his detention order if he so desires. The petitioner has duly received the detention order as well as grounds of detention on 4-9-06 through Deputy Supdt, District Jail, Jammu.
15. The case of the petitioner is that he was released from custody after he had served his entire period of 24 months of detention, pursuant to the earlier detention order dated 26-02-2003. He had also got bail in the aforesaid criminal case registered against him. But again detained without any reason. Whatever is asserted by the petitioner, on the face of it, appears to be correct for a very simple reason that had he been in custody in a criminal case already registered against him way back in 2002 as an under trial prisoner up to the stage of passing of impugned order in January, 2006 there was no difficulty for the State to get the second order executed upon him. So one position is very clear before this Court that on the date of passing of the fresh order of detention (impugned herein), the petitioner was not in the custody. Let us examine it from any angle.
The complete address of the petitioner was known to the detaining authority as he was already facing a criminal trial which came to an end on 30-10-2006 only. If at all the executing agency was facing any difficulty in getting the detention order executed, it could ask for the cancellation of bail of the petitioner or could even get the notice issued to his surety who had appeared at the time of furnishing bail bonds, so that the order of detention could be easily executed by adopting coercive process. The same is not done in the case in hand for the reason best known to the executing agency. From the aforesaid reply (reproduced in part) filed by respondent No. 2, one fact is clear that the detention order was received by the petitioner on 4-9-2006 through Deputy Supdt., District Jail, Jammu. So, the only inference which can be drawn is that the date of taking the petitioner in custody and the date of execution of the impugned order is the same, i.e., 4.9.2006. So there remains no doubt to conclude that either it is an intentional delay on part of the executing agency in not getting the order of detention executed for long eight months or certainly unexplained. Be that as it may, what surfaces from the aforesaid discussion is that the detaining authority has miserably failed to explain this inordinate delay in executing the detention order and this vital flaw goes to the core of the case so as to quash the detention order.
16. My view on this important aspect is further strengthened by a Hon'ble Division Bench judgment of this Court rendered in case Mohammad Yousuf Sofi v. State of J & K and Anr. 2003 (1) S.L.J 218, in which the Division Bench, while dealing with the aspect of un-explained delay in execution of the detention warrant and following the judgment of Hon'ble Apex court rendered in K.P.M. Basheer's case (supra) cited by Mr. Siddiqui, observed that unexplained delay in execution of the detention warrant tantamounts to manipulation on the part of the detaining authority as well as the executing agencies and such delay throws doubt on the genuineness of the satisfaction of the detaining authority and, therefore, detention renders illegal. It was further observed that, if undue delay of such a nature is allowed to occur in the execution of the detention order from which it can be assumed that the nexus and proximity between detention and the object of the detention has broken.
17. In K.P.M. Basheer's case (supra) relied upon by the Hon'ble Division Bench of this Court in Mohammad Yousuf Soil's case (supra), their lordships of Hon'ble Apex Court, while dealing with this aspect observed as under:
11. Under these circumstances we are of the view that the order of detention cannot be sustained since the 'live and proximate link' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him. As we have now conic to tin-conclusion that the order of detention is liable to be set aside on this ground alone. We are not dealing with other contentions raised in the Memorandum of appeal as well as in the writ petition.
18. The following judgments of this Court on this issue may also be read with advantage;
Shabir Ahmad Wani v. State and Ors. HCP 32/07, date of decision: 18-07-2007"
Zulfiqar Majid Shah v. State of J & K, HCP No. 21/2004 date of decision 21-12-2004 Shabir Ahmad Sheikh v. State and Ors. HCP No. 586/2006, date of decision 17-04-2007
19. May be according to Mr. Siddiqui, the impugned order of detention deserves to be quashed on other infirmities also pointed out by him, but I do not feel the necessity of entering into a detailed discussion on those counts as in my considered view, the impugned order deserves to be quashed on account of the aforesaid main infirmity which is staring at the detaining authority.
20. The net result is that the order of detention bearing No. 1/PSA of 2006 dated 30-01-2006 (Annexure-'C) is, hereby, quashed with a direction to the respondents to release the person of Maroof Khan S/o late Haji Atta Ullah Khan R/o Village Mora Bachal, Tehsil: Surankote, (District: Poonch) forthwith unless required in any other case. Registry is directed to communicate the order to the Jail Superintendent where the petitioner, detenue is presently lodged.