Jammu & Kashmir High Court - Srinagar Bench
Suhail Ahmad Sheikh vs State Of Jk & Ors. on 27 August, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
HCP No. 82/2018
Date of Order: 27th of August, 2018.
Suhail Ahmad Sheikh
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr Mir Shafqat Hussain, Advocate.
For the Respondent(s): None.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. By the dint of order bearing No. 198/DMB/PSA/2018 dated 19th of March, 2018, passed by the Respondent No.2/District Magistrate, Baramulla, in exercise of the powers conferred in him under clause (a) of Section 8 of the J&K Public Safety Act, 1978 (for short "The Act of 1978"), one Suhail Ahmad Sheikh @ Suhail Dakoo S/o Nazir Ahmad Sheikh R/o Tawheedgunj, Baramulla, District Baramulla, has been detained and lodged in District Jail, Kathua.
02. The detenue has challenged the said order of detention, chiefly, on the grounds that the detaining authority has failed to apply its mind to the fact whether HCP No. 82/2018 Page 1 of 5 the preventive detention of the detenue was imperative, notwithstanding his custody in a substantive offence. To this, it has been added, 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 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 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 a number of FIRs, including FIR bearing No. 290/2016, registered in Police Station, Baramulla, for the commission of offences punishable under Sections 307, 148, 149, 336, 332, 353 of the 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 since the detenue was already in custody in the FIRs cited above, that formed the baseline of the order of the detention, therefore, he could not have been detained under the provisions of the Act of 1978. Testing this argument and the question on the touchstone of the law, the answer is an emphatic "No", taking into consideration the law laid down by the Apex Court of the country 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:
HCP No. 82/2018 Page 2 of 5"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."
06. 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"HCP No. 82/2018 Page 3 of 5
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."
07. Looking at the instant case on the parameters 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 custody in the case, 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 the higher forum. This single infraction knocks the bottom out of the 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.
08. 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.
09. 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 HCP No. 82/2018 Page 4 of 5 bearing No. 198/DMB/PSA/2018 dated 19th of March, 2018, passed by the Respondent No.2/District Magistrate, Baramulla, is quashed with a further direction to the respondents to release the person of Suhail Ahmad Sheikh @ Suhail Dakoo S/o Nazir Ahmad Sheikh R/o Tawheedgunj, Baramulla, District Baramulla, forthwith from the preventive custody, of course, if not required in any other case.
(M. K. Hanjura) Judge SRINAGAR August 27th, 2018 "TAHIR"
HCP No. 82/2018 Page 5 of 5