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Jammu & Kashmir High Court - Srinagar Bench

Ghulam Nabi Khan @ Naba Khan vs State Of Jk & Ors. on 19 December, 2017

Author: M. K. Hanjura

Bench: M. K. Hanjura

                   HIGH COURT OF JAMMU AND KASHMIR
                             AT SRINAGAR

HCP No. 308/2017
                                          Date of order: 19th of December, 2017.

                       Ghulam Nabi Khan @ Naba Khan
                                       Vs.
                               State of JK & Ors.

Coram:
               Hon'ble Mr Justice M. K. Hanjura, Judge.

Appearance:

      For the Petitioner(s):    Mr Syed Musaib, Advocate.
      For the Respondent(s): Mr Asif Maqbool, GA.

i) Whether approved for reporting in                  Yes/No
             Law Journals etc.:
ii) Whether approved for publication
             in Press:                                 Yes/No

01. By dint of order bearing No.98/DMB/PSA/2017 dated 7th of September, 2017, passed by the Respondent No.2/District Magistrate Baramulla, in exercise of powers conferred in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (for short "The Act of 1978"), one Ghulam Nabi Khan @ Nab Khan S/o Ghulam Mohammad Khan R/o Bangdara Kreeri, District Baramulla, has been detained and lodged in District Jail, Kathua.

02. The detenue has challenged the said order of detention, chiefly, on the ground that the relied upon documents for detaining him have not been served on him and, therefore, his right to make an effective representation has been affected. To this, it has been added that the detaining authority has failed to HCP No. 308/2017 Page 1 of 6 apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his custody in a substantive offence. It has also been stated that the Respondent No. 2 has passed the order of detention on the dictates of the sponsoring Agency, i.e. the Officer who has prepared the police dossier and no independent attempt has been made by the Respondent No.2 to scan and evaluate it before passing the order of detention.

03. Counter has been filed by the Respondents, wherein it is stated that all the relied upon material for detaining the detenue have been furnished to the detenue and that the detaining authority has complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue has failed to avail the remedy prescribed under the Act. He has not filed the representation against the order of detention. It has also been stated that the detenue is involved in six FIRs registered at Police Station, Kreeri, viz. FIR No. 58/2016 for the offences under Sections 307, 147, 148, 149, 353, 336, 427 RPC; FIR No. 60/2016 for the offences under Sections 147,148, 341, 336, 427 RPC; FIR No. 79/2016 for the offences under Sections 147, 148, 149, 336, 332, 341, 307 RPC; FIR No. 86/2016 for the offences under Sections 13 ULA P Act and 506 RPC; FIR No. 88/2016 under Sections 147, 148, 149, 336, 341, 427 RPC; and FIR No. 92/2016 for the offences under Sections 307, 147, 148, 149, 336, 353, 427 RPC. In the end, it has been urged that since the order of detention has been passed on justifiable grounds, therefore, the instant Habeas Corpus petition merits dismissal, and it may, accordingly, be dismissed.

04. Heard and considered.

05. The main plank of the argument of the learned counsel for the detenue is that the relied upon material for detaining the detenue has not been provided to the detenue in its entirety, as a consequence of which, the right of the detenue to make a meaningful representation has been denied. On perusal of the record relating to the detention of the detenue, as made available before the Court by HCP No. 308/2017 Page 2 of 6 the learned Government Advocate, what gets revealed is that the detenue has been provided the copy of the detention order, the letter addressed to the detenue and a copy of the grounds of detention containing 19 leaves. However, the details of the aforesaid 19 leaves and the contents thereof, except the ones stated above, have not been spelt out. Therefore, apparently, the relevant material viz. copies of FIRs registered against the detenue, etc. have not been supplied to the detenue. This infringement, in view of the well settled principles of law governing the field, renders the order of detention liable to be set aside. Resort can, in this behalf, be had to the law laid down by the Hon'ble Apex Court of the country in case titled "Thahira Haris V. Government of Karnataka", reported in "AIR 2009 SC, 2184", at Paragraph Nos. 27 and 28, which are reproduced hereunder, verbatim et literatim:

"27. There were several grounds on which the detention of the detenue was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon documents, continued detention of the detenue becomes illegal and detention order has to be quashed on that ground alone.

28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other material relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention."

06. Looking at the instant case from the other perspective, the detenue has pleaded, in his petition, that he was in custody of the police authorities for a substantive offence and, therefore, there was no need to direct his preventive detention. In the Counter Affidavit, this plea of the petitioner has not been rebutted or proved otherwise. It has been stated in the Counter Affidavit that the detenue is involved in six FIRs registered at Police Station, Kreeri, viz. FIR No. 58/2016 for the offences under Sections 307, 147, 148, 149, 353, 336, 427 RPC; FIR No. 60/2016 for the offences under Sections 147,148, 341, 336, 427 RPC;

FIR No. 79/2016 for the offences under Sections 147, 148, 149, 336, 332, 341, 307 RPC; FIR No. 86/2016 for the offences under Sections 13 ULA P Act and 506 RPC; FIR No. 88/2016 under Sections 147, 148, 149, 336, 341, 427 RPC; and FIR No. 92/2016 for the offences under Sections 307, 147, 148, 149, 336, 353, 427 RPC. The arrest of the detenue at the time of the passing of the order of detention has not been disputed.

07. Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, the question that arises for consideration is whether an order of detention could be passed on the face of such an eventuality? The answer to this question is an emphatic "No", taking into consideration the law laid down by the Hon'ble Supreme Court in paragraph No.24 of the judgment delivered in the case of "Sama Aruna v. State of Telangana & Anr.", reported in "AIR 2017 SC 2662", which may be noticed :

"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:

"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

08. The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph No. 13 of the judgment pronounced in the case of "V. Shantha v. State of Telangana & others", reported in "AIR 2017 SC 2625", that reads as under :

"13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. 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 the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act."

09. Testing the instant case on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of "The Act of 1974", when he was already in the custody of the police authorities in the cases, the details whereof have been given hereinbefore. His custody in police for the offences stated above, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that if the detenue applies for bail, he may succeed in seeking his release but this apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to knock at the doors of a higher forum. This single infraction knocks the bottom out of the HCP No. 308/2017 Page 5 of 6 contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail. It cuts at the very root of the State action. The State could have taken recourse to the ordinary law of the land.

10. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law.

11. In the backdrop of what has been said and done above, the instant Habeas Corpus petition is allowed, as a consequence of which, the order of detention bearing No. 98/DMB/PSA/2017 dated 7th of September, 2017, passed by the Respondent No. 2-District Magistrate, Baramulla, is quashed with a further direction to the respondents to release the person of Ghulam Nabi Khan @ Nab Khan S/o Ghulam Mohammad Khan R/o Bangdara Kreeri, District Baramulla, forthwith from the preventive custody.

12. The record, as produced by the learned Government Advocate, be returned to him with utmost dispatch.

(M. K. Hanjura) Judge SRINAGAR December 19th, 2017 "TAHIR"