Jammu & Kashmir High Court
Ali Mohd. Najar vs State Of J And K And Anr. on 24 April, 2003
Equivalent citations: 2003(2)JKJ732
JUDGMENT Y.P. Nargotra, J.
1. The detenu was ordered to be taken into preventive custody on 10.3.2002 in pursuance of detention Order No. DMS/PSA/84 dated 4.3.2002. The grounds of detention furnished to the detenu are as follows:
"You are an active dedicated staunch worker of Mujahideen Jammu and Kashmir outfit having its headquarters in Pakistan. The aim and object of subject organisation is to secede the State of Jamrnu & Kashmir from the Union of Indian and to annex it with Pakistan.
You were born at Village Trehgam on 5.7.1965. You passed matriculation examination in the year 1982 through Govt. High School Trehgam. You were idle from 1982 to 1987 and were in search of some job. You were appointed as Constable in the year 1987 in Police department. On 22.2.1987 you were posted in DPL Srinagar initially and then to Police Division Batamaloo. You were living in a rented house alongwith other Constables in Batamaloo. You remained posted in Police Station Kangan, Police Station Nigeen. During your posting at Police Station Nigeen you came into contact with a militant namely Mohammad Shafi Lone @ Peer Jahangir who was resident of your village and was commander of JKLF. The said militant motivated you to join his newly formed outfit namely Mujahideen Jammu & Kashmir. You started working for the banned outfit Mujahideen Jammu & Kashmir. Later on you were given the rank of Deputy Chief and were issued a Revolver and four Magazines. You used to raise funds and distribute it among the members of the outfit.
It is clear that your activities are highly prejudicial to the security of the State. You may get bail from the court and your remaining at large will be threat to the security of the State. Under such compelling circumstances, it has become imperative to detain you under Public Safety Act, 1978 for which a separate order has been issued."
2. In the counter affidavit also, after giving the above quoted grounds, it has been stated:
"That the activities of the detenu were highly prejudicial to the security of the state and there was likelihood of his getting bail and in order to prevent him from such activities the detenue was detained under the provisions of Public Safety Act. Under these compelling circumstances order of detention was passed."
3. Thus from the reply affidavit and the grounds of detention, positive case of the respondent appears that the detenu was engaged in activities prejudicial to the security of the State and was arrested in connection with FIR No. 91/2001 under Section 7/25 Arms Act Section 30 of the Act, Section 13, Unlawful Activities Act, Section 120B RFC by Police Station Nigeen on 5.12.2001 and there was likelihood of granting bail to him and likelihood of his reengaging in such activities after being released on bail. In AIR 1990 SC 1196:
"An order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (1) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu, is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
4. The contention of learned counsel for the petitioner is that on the face of it the detention order would appear to have been passed by keeping in view the abovequoted ruling of Apex Court but when it is factually examined it will appear that it has been passed mechanically and without application of mind. He submitted that detenu was not in custody on the day of passing of the order as he stood already bailed out since 15.12.2001 and was a free man and therefore there was no question of likelihood of being granted bail and then re-engaging in the activities prejudicial to the security of the State. The detaining authority was thus not alive to the situation there is nothing in the grounds of detention, to say that after release on bail the detenu engaged in any activity which was prejudicial to the security of the State.
5. The petitioner in paragraph (4) of his petition stated that he was released on bail on 15.12.2001. This allegation has not been replied in reply affidavit which appears to have been prepared in a casual manner. In the reply affidavit it is stated that 'the detenu was taken into preventive custody on 10.3.2002.... the detenu acknowledged the receipt on 10.3.2002 of the grounds of detention and its being read over and explained to him in the language which he understood and has put his signature on the receipt which is authenticated by Deputy Superintendent Central Jail, Kot-balwal, Jammu.
6. From the record produced by the learned counsel for the respondent, however, it appears that detention order was forwarded to SSP, Srinagar who, vide his endorsement No. PROS/D-608/02/1808/1076 forwarded it to SHO Nigeen who in turn endorsed it to ASI Roshan Din on 7.3.2002 and Roshan Din has made the following compliance report:
"In compliance to D.M. Sgr. Order No. DMS/PSA/84 dated 4.3.2002. IA.S.I Roshan Din No. 7016/NGO has taken into custody of Shri Ali Mohd. Najar S/o Mohd. Abdullah Najar R/o Trehgam, Kupwara to on 9.3.2002 from P/S Nageen, Sgr. The contents of the order overleaf has been read over and explained to him in Urdu/Kashmiri languages he understands fully. In token of same his signatures has been depicted at Mark A given below. The individual is handed over to Supdtt. Central Jail, Kot-balwal, Jammu today on 10.3.002 for lodgment alongwith PSA warrant and grounds of detention."
7. The record does not show the Dy. Superintendent Jail authenticated the fact that the grounds of detention were read over in his presence. The above report says that detenue was taken into preventive custody on 9.3.2002 whereas reply affidavit says it was 10.3.2001 the detenu could not be in custody of Nigeen Police Station from 5.12.2001 in connection with the aforesaid offences in view of Section 167, Cr. P.C. There is nothing available on record to show as to in connection with which offence and since when the detenu was in custody of Nigeen Police Station. There is no reply to the allegation that the accused/detenu stood bailed out since 15.12.2002 and in these circumstances the only possibility is that the detenu was arrested again and brought in the police station to justify the detention order on the aspect that detenu was in custody. Be it that so the detaining authority should have been alive to the situation and should have considered the effect of bail order before passing the detention order and, therefore, such failure vitiates the detention order.
8. For the reasons stated above the detention order No. DMS/PSA/84 dated 4.3.2002 is hereby quashed. The detenu shall be released forthwith if not, required in any other case or offence. The record returned to the counsel for the respondent.