Jammu & Kashmir High Court - Srinagar Bench
Mohd Iqbal Kana vs State Of J&K; And Another on 13 December, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
1
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
......
HCP No.276/2017 Date of Decision: 13.12.2017 Mohd Iqbal Kana v.
State of J&K and another Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing counsel:
For petitioner(s): Mr Wajid Haseeb, Adv vice Mr Mir Shafqat Hussain, Advocate For respondent(s): Mr Asif Maqbool, GA Whether to be reported in Digest/Journal? Yes/No
1. Impugned is order no.80/DMB/PSA/2017 dated 12th August 2017, whereby District Magistrate, Baramulla (respondent no.2), has, in exercise of powers under clause (a) of Section 8 of J&K Public Safety Act, 1978, placed one Mohd Iqbal Kana son of Bashir Ahmad Kana resident of Jamia Qadeem, Sopore, District Baramulla (for brevity "detenu") under preventive detention and directed his lodgement in Central Jail Kotebhulwal, on the grounds, submissions and averments enumerated in writ petition.
2. The case set up by petitioner in petition on hand is that detenu was arrested by security forces on 06.08.2017 from his home and taken to police station Tarzoo, where he was implicated in case FIR no.122/2016 and 182/2017. While being in custody, detenu was shifted to Central Jail Kote Balwal, Jammu, to be detained under preventive custody. Petitioner is said to have approached office of respondent no.2, and unofficially obtained photostat copies of order of detention, communication letter and grounds of detention.
3. Counter Affidavit has been filed by respondents. Detenu, according to respondents, has been detained in pursuance of impugned order of detention as he is a hard-core stone pelter and was motivating and instigating youth of town Sopore for creating law and order problems, thereby disturbing the peace of tranquillity of the Sopore area/State. It is insisted that while examining dossier and after perusing material, it was found that detenu's activities were prejudicial to maintenance of public order, as such, in the facts and circumstances of the case, preventive detention of detenu was found necessitated by detaining authority. As a result of which, order of detention, impugned in this petition, was issued, with a view to prevent him from acting in any manner which is, according to respondents, threat to the maintenance of public order. The warrant is averred to HCP no.276/2017 Page 1 of 7 2 have been forwarded to Senior Superintendent of Police, Sopore, in duplicate for execution under Section 9 of the Act of 1978 and pursuant to the detention order, warrant was executed through ASI Nazir Ahmad no.831955/EXK of DPL Sopore on 13.08.2017, who, on the same day, handed over detenu to Assistant Superintendent, Central Jail, Jammu Kot Bhalwal, who took over the detenu against proper receipt and lodged him in the said Jail. It is claimed by respondents that grounds of detention were read over, explained and served to the detenu, whereunder he was made aware about his preventive detention and he was informed that he had a right to file representation to the Government against the detention, which as per record shows not to have been filed by detenu.
4. Heard and considered.
5. Learned counsel for petitioner, to bolster what has been submitted and averred in petition on hand, states that the cases mentioned in the grounds of detention have no nexus with the detenu and have been fabricated by police in order to justify its illegal action of detaining detenu and that the case FIRs in which petitioner was arrested, had been registered in the month of July-
September 2016 and for about one year no effort was made by police to arrest detenu in the case, though he was all along available. He, thereafter, asserts that allegations made in grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention order on such grounds is unjustified and unreasonable and that detaining authority has mentioned two FIRs in grounds of detention, but, according to learned counsel, the allegations against detenu are far from reality. The allegations, reflected in grounds of detention, as vehemently maintained by learned counsel for petitioner, are vague and do not justify passing of detention order on the basis of such allegations and that detaining authority has not given any reasonable justification to pass detention order, and therefore, impugned order suffers from complete non-application of mind on part of detaining authority. His next averment is that detention order has been passed after delay of one year from the date alleged criminal activity, which has been made basis for satisfaction to pass impugned order of detention and during the period of delay no fresh activity has been attributed to detenu. The unexplained delay has snapped proximity of detention order with the time its alleged requirement arose and detaining authority has not given any explanation for the delay in passing impugned order of detention. his next contention is that detenu was already in custody in relation to a criminal case and had another criminal case pending investigation; neither had detenu applied for bail nor was bail otherwise granted to him and detaining authority has not given any justified reason to pass detention order if detenu was HCP no.276/2017 Page 2 of 7 3 already in custody in relation to criminal case. Learned counsel proceeds to further avow that last alleged activity has occurred on 19.08.2016 and thereafter no activity has been attributed to detenu till date, as such, there was no reasonable apprehension existing to hold that detenu would again indulge in so-called similar activities even if he might be admitted to bail. Learned counsel for petitioner strenuously states that detaining authority has not prepared grounds of detention by itself, which is a prerequisite for him before passing any detention order and that detaining authority has relied only on police dossier and has not perused any supporting material. He also states that preventive detention cannot be resorted to when sufficient remedies are available under general laws of land for any omission or commission under such laws and that preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve investigating authorities of their normal functions of investigating crimes which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. To buttress his submissions, learned counsel for petitioner has placed reliance on Sama Aruna v. State of Telengana AIR 2017 SC 2662; V. Shantha v. State of Telangana & ors, AIR 2017 SC 2625; Haradhan Saha v. The State of West Bengal & Others, (1975) 3 SCC 198 and Union of India v. Paul Manickam & Another, (2003) 8 SCC 342.
6. Per contra learned counsel for respondents states that the material, which was relied by detaining authority, was furnished to detenu besides grounds of detention along with order of detention was supplied to detenu against proper receipt and grounds of detention are precise, proximate, pertinent and relevant and that there is no vagueness or staleness in grounds coupled with definite indications as to the impact thereof, which has been precisely stated in the grounds of detention and the incidents clearly substantiate subjective satisfaction arrived at by detaining authority. In support of his submission, learned counsel for respondents places reliance on The Secretary to Government v. Nabila (2015) 12 SCC 127.
7. The reverence of life is insegragably concomitant with the dignity of a human being who is basically divine, not obsequious. A human personality is indued with potential infinitude and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, "a brief candle", or "a hollow bubble". The spark of life gets more splendiferous when man is treated with dignity sans humiliation, for every HCP no.276/2017 Page 3 of 7 4 man is expected to lead an honourable life which is a splendid gift of "creative intelligence". When a dent is created in the reputation, humanism is paralysed. Reverence for the nobility of a human being has to be the cornerstone of a body polity that believes in orderly progress. But, some, the incurable ones, become totally oblivious of the fact that living with dignity has been enshrined in our Constitutional philosophy and it has its ubiquitous presence and the majesty and sacrosanctity dignity cannot be allowed to be crucified in the name of precautionary incarceration. Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, "the reverence of life offers me my fundamental principle on morality". The aforesaid expression may appear to be an individualistic expression of a great personality, but, when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands.
8. Article 22(3)(b) of the Constitution of India, which vouchsafes preventive detention, is only an exception to Article 21 of the Constitution. An exception is an exception and cannot ordinarily nullify the full force of main rule, which is right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting civil liberties of people and not to put them in immurement for a long period shorn of recourse to a lawyer and without a trial. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in essence a detention order of three months, or any other period(s), is a punishment of that particular period's incarceration. What difference is it to detenu whether his immurement is called preventive or punitive? Besides, in cases of preventive detention no offence is proved and justification of such detention is suspicion or reasonable probability, and there is no conviction that can only be warranted by legal evidence. Preventive detention is every so often described as a 'jurisdiction of suspicion', Detaining authority passes detention order on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to rule of law.
9. Preventive detention law makes room for detention of a person without a formal charge and without trial. The person detained is not required to be produced before the Magistrate within 24 hours, so as to give an opportunity to the Magistrate to peruse the record and decide whether the detenu is to be remanded to police or judicial custody or allowed to go with or without bail. The detenu cannot engage a lawyer to represent him before the detaining authority. In the said background it is of utmost importance that whatever procedural safeguards are guaranteed to the detenu by the Constitution and the preventive HCP no.276/2017 Page 4 of 7 5 detention law, should be strictly followed. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer. The importance of a lawyer to enable a person to properly defend himself has been elaborately explained by the Supreme Court in A.S. Mohd. Rafi Vs. State of Tamilnadu AIR 2011 SC 308 and Md. Sukur Ali Vs. State of Assam, JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of the U.S. Supreme Court in Powell Vs. Alabama, 287 U.S. 45 (1932) "Even the intelligent and educated layman has small and sometimes no skill in the science of law", and hence, without a lawyer he may be convicted though he is innocent. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, historical struggles, will become nugatory. In State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 this Supreme Court observed:
"...Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the Government we fought for". And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy Vs. Union of India (1982) 1 SCC 271, and Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54."
10. The Constitution Bench of the Supreme Court in M. Nagaraj & ors. Vs. Union of India & ors. (2006) 8 SCC 212, observed:
"It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race."HCP no.276/2017 Page 5 of 7 6
11. The Nine Judge Constitution Bench of the Supreme Court in I.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1, observed:
"It is necessary to always bear in mind that fundamental rights have been considered to be the heart and soul of the Constitution..... Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as & "transcendental", & inalienable, and primordial";.
12. In the present case, averment of learned counsel for respondents is that there are very serious allegations against detenu as he has always been in the lead role in stone pelting incidents and has been creating law and order problem in the town of Sopore and its adjacent areas and in order to accomplish antisocial agency, he resorted to stone pelting and has turned into a hardcore stone pelter. And in this connection, criminal cases are already going on against detenu under various provisions of the Ranbir Penal Code and if he is found guilty, he will be convicted and given appropriate sentence. Maybe, offences allegedly committed by detenu attract punishment under prevailing laws but that has to be done under prevalent laws and taking recourse to preventive detention laws would not be warranted. Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha v. State of Tami Nadu AIR 2011 SCW 2262, while emphasising need to adhere to procedural safeguards, observed:
"It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as "jurisdiction of suspicion", The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital."
13. It may not be out of place to mention here that preventive detention is not a quick alternative to normal legal process, is the saying of the Supreme Court in V. Shantha v. State of Telangana & ors, AIR 2017 SC 2625. The Supreme Court has held that preventive detention of a person by a State after branding him a 'goonda' merely because the normal legal process is ineffective and time- consuming in 'curbing the evil he spreads', is illegal and that detention of a person is a serious matter affecting the liberty of the citizen. Preventive detention HCP no.276/2017 Page 6 of 7 7 cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws, the Supreme Court observed. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate. To classify the detenu as a 'hardcore stone pelter' cannot be sufficient to invoke the statutory powers of preventive detention. No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. My views are fortified by the judgements rendered in Rekha's case and V. Shantha v. State of Telangana case (supra) and Sama Aruna v. State of Telengana AIR 2017 SC 2662.
14. For the reasons discussed above, the petition is allowed and detention order no.80/DMB/PSA/2017 dated 12th August 2017, passed by District Magistrate, Baramulla - respondent no.2, directing preventive detention of Mohd Iqbal Kana son of Bashir Ahmad Kana resident of Jamia Qadeem, Sopore, District Baramulla, quashed. Respondents are directed to set detenu at liberty if not required in any other offence. Disposed of.
15. Record be returned to counsel for respondents.
( Tashi Rabstan ) Judge Sirnagar 13th December 2017 Ajaz Ahmad HCP no.276/2017 Page 7 of 7