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Jammu & Kashmir High Court - Srinagar Bench

Mohammad Yousuf Mir vs State Of Jk & Ors. on 31 July, 2018

Author: M. K. Hanjura

Bench: M. K. Hanjura

                   HIGH COURT OF JAMMU AND KASHMIR
                             AT SRINAGAR

HCP No. 386/2017
                                               Date of Order: 31st of July, 2018.

                            Mohammad Yousuf Mir
                                      Vs.
                             State of JK & Others

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

Appearance:

      For the Petitioner(s):    Mr. Mian Tufail, Advocate.
      For the Respondent(s): Mr. Asif Maqbool, GA.

i) Whether approved for reporting in                    Yes/No
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ii) Whether approved for publication
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01. By the dint of order bearing No. 112/DMS/PSA/2017 dated 20th of November, 2017, passed by the Respondent No.2 /District Magistrate, Shopian, in exercise of the powers conferred in him under clause (a) of Sub Section 1 of Section 8 of the J&K Public Safety Act, 1978 (for short "The Act of 1978"), one Mohd Yousuf Mir S/o Ghulam Rasool Mir R/o Ratnipora, District Shopian, has been detained and lodged in Central Jail Srinagar.

02. The detenue has challenged the said order of detention, chiefly, on the grounds that the detaining authority has failed to apply his mind to the fact HCP No. 386/2017 Page 1 of 7 whether 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 grounds of detention have been furnished to the detenue. 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 number of FIRs, being FIR No. 291/2016, registered in Police Station, Shopian, for the commission of offences punishable under Section 13 ULA (P) Act; FIR No. 123/2016, registered in Police Station, Shopian, for the commission of offences punishable under Sections 13 ULA (P) Act; FIR No. 197/2016, registered in Police Station Shopian, for the commission of offences punishable under Sections 147, 148, 149, 336, 353, 427, 436 RPC and 3(2) P.P.P.D; FIR No. 229/2016, registered in Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 149, 188 RPC; FIR No. 180/2016, registered in Police Station Shopian, for the commission of offences punishable under Sections 147, 148, 149, 307, 336, 353, 427 RPC; FIR No 276/2016, registered in Police Station, Shopian, for the commission of offences punishable under Sections 13 ULA Act; FIR No. 250/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections, 147, 148, 149, 336, 353, 307, RPC and 13 HCP No. 386/2017 Page 2 of 7 ULA Act, 3(1) J&K PPPD Act; FIR No 233/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 149, 336, 332,353, 307 RPC; FIR No 169/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 336, RPC and 13 ULA Act; FIR No. 225/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 149, 353, 332, 336, 307, 427 RPC and 3 PPP Damage Act; and FIR No. 231/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 149, 188, 353, 332, 307 RPC and 13 ULA Act. 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 in custody of the police authorities for a substantive offence, therefore, there was no need to direct his preventive detention. It has been stated in the Counter Affidavit that the detenue is involved in number of FIRs, being FIR No. 291/2016, registered in Police Station, Shopian, for the commission of offences punishable under Section 13 ULA (P) Act; FIR No. 123/2016, registered in Police Station, Shopian, for the commission of offences punishable under Sections 13 ULA (P) Act; FIR No. 197/2016, registered in Police Station Shopian, for the commission of offences punishable under Sections 147, 148, 149, 336, 353, 427, 436 RPC and 3(2) P.P.P.D; FIR No. 229/2016, registered in Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 149, 188 RPC; FIR No. 180/2016, registered in Police HCP No. 386/2017 Page 3 of 7 Station Shopian, for the commission of offences punishable under Sections 147, 148, 149, 307, 336, 353, 427 RPC; FIR No 276/2016, registered in Police Station, Shopian, for the commission of offences punishable under Sections 13 ULA Act; FIR No. 250/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections, 147, 148, 149, 336, 353, 307, RPC and 13 ULA Act, 3(1) J&K PPPD Act; FIR No 233/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 149, 336, 332,353, 307 RPC; FIR No 169/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 336, RPC and 13 ULA Act; FIR No. 225/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 149, 353, 332, 336, 307, 427 RPC and 3 PPP Damage Act; and FIR No. 231/2016, registered at Police Station, Shopian, for the commission of offences punishable under Sections 147, 148, 149, 188, 353, 332, 307 RPC and 13 ULA Act. The arrest of the detenue in the said FIRs, at the time of passing of the order of detention, has not been disputed.

06. 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 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 :

"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."

07. The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph No. 13 of the judgment delivered 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 HCP No. 386/2017 Page 5 of 7 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."

08. 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 1978", 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 offence 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 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.

09. 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 and of which, he/she cannot be deprived except in due course of law and for the purposes sanctioned by law.

10. 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. 112/DMB/PSA/2017 dated 20th of November, 2017, passed by the Respondent No.2/ District Magistrate, Shopian, is quashed, with a further direction to the respondents to release the person of Mohammad Yousuf Mir S/o Ghulam Qadir Mir R/o Ratnipora District Shopian, forthwith from the preventive custody, if not required in any other case.

(M. K. Hanjura) Judge SRINAGAR July 31st, 2018 "TAHIR"