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2000 DIGILAW 72 (JK)

Mohd. Amin Alia v. State Of J. &K.

2000-04-18

SYED BASHIR-UD-DIN

body2000
1. Petitioner alleges that he was arrested on 18-01-1996 in connection with FIR No. 30/96, registered at Police Station Saddar, Srinagar. His punitive detention ended when he was acquitted in this case on 28-06-1999 by District and Sessions Judge, Budgam (Annexure-A). The District Magistrate, Srinagar under order No: DMS/PSA/149/96 dated 11-06-1996 has ordered preventive detention of the petitioner under section 8 of the Jammu and Kashmir Public Safety Act for a period of 18 months with a view to prevent him from acting in any manner prejudicial to the security of the State. This order, petitioner alleges, has remained unexecuted all along. As the order is sought to be executed, he has challenged the order in main on the ground that the proximate live link between grounds of detention and purpose sought to be achieved by the detention is missing due to non-execution of the order for last over three and a half years. It is stated that there is no nexus between the order and detention. 2. Despite opportunity, respondents have not filed counter/objections, though Mr. G. Mustaffa, GA appeared and was heard. Counsel for the parties addressed their arguments and placed their respective contentions before court. The question to be determined is whether petitioner can in the facts and circumstances of the case challenge order of detention passed under Section 8 of the J&K Public Safety Act, 1978, before detention order is executed and the subject (petitioner) is actually detained there under. 3. The counsel for petitioner relying on N.K. Bapna Vs. Union of India and others (1992) 3 SCC 512 and Addl. Secretary to Government of India Vs. Smt. Alka Subhash Gadia (1992 Supp. (1) SCC 496, submits that detention order can be challenged even before service of the order on the detenue (petitioner here) and further argues that this Habeas Corpus petition is maintainable even at pre-execution stage as the ˜proximate live link™ between the warrant of arrest and the purpose sought to be achieved by the detention is missing. 4. Mr. G. Mustaffa, GA, in a reply contends that the petitioner™s case does not fall within the parametrical limits set out in the above said authorities. The detention order in question cannot be challenged by petitioner at this pre-admission stage. The writ petition is not maintainable unless petitioner surrenders to or is taken in custody. He cites Union of India and others Vs. The detention order in question cannot be challenged by petitioner at this pre-admission stage. The writ petition is not maintainable unless petitioner surrenders to or is taken in custody. He cites Union of India and others Vs. Parasmal Rampuria (1998) 8 SCC: 402. 5. In N.K. Bapna case (Supra), Supreme Court on principle of balancing the conflicting claims of State and fundamental rights of citizens, held that a person sought to be detained under preventive detention order can challenge such order, even at pre-execution/pre-detention stage. It could be done as an exigency of reconciling above conflicting claims and subjective limits enunciated in Smt. Alka Subbash Gadia case (Supra) in terms as under:- .... It is not correct to say that the Courts have no power to entertain grievance against any detention order prior to its execution. The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number viz, where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed (ii) that it is sought to be executed against a wrong person (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.......In the rare cases where the detenue, before being served with them, learns of the detention order and the grounds on which it is made and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execution stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decision and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre-execution stage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenue claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well settled principles.� 6. In Abdul Hamid Hajam Vs. State of J&K & others, (H.C. Petition No: 211/98, decided on 22-02-98) after referring to Article 22 and on examining the relevant provisions of Jammu and Kashmir Public Safety Act, I have observed:- ....All these mandatory provisions of the J&K Public Safety Act, have to be complied with and if any of the provisions is not satisfied or complied with, the detention under the order will be void. Obviously, in such cases the detention is arbitrary and not legal. The point of time for compliance of these provision (Ss 13, 16, 18) is ˜the date of detention™. In other words actual detention, may be on surrender or arrest, is a pre-condition or basis for compliance with the above provisions of Public Safety Act. 7. Contextually, in the light of whatever is stated herein above, it is obvious that the basis of a H.C. Writ, postulates the detention of the person concerned. The legality or otherwise of the detention is to be judged and ruled at the time of the return and not with reference to the date of filing of the petition, so long the person is not detained, it cannot be said that the order of detention or the grounds therefore are served on the petitioner. The legality or otherwise of the detention is to be judged and ruled at the time of the return and not with reference to the date of filing of the petition, so long the person is not detained, it cannot be said that the order of detention or the grounds therefore are served on the petitioner. Service of grounds is in fact visualized by the Act only when the person is actually taken in custody and detained.........For the above reasons and on consideration of the matter, in the facts and circumstances of this case, this Writ petition is not maintainable, as the Court cannot scan the grounds and inquire into the facts and circumstances of the case, when the detenue is free as he has not been detained pursuant to the detention order and has even failed to surrender and the order and grounds have not been served on him in accordance with the procedure established by law....� The same view has been taken in H.C. Petition No. 198/98 with two other petitions decided on 08-12-1999 by a learned Single Bench of this Court. 8. In Union of India Vs, Parasmal Rampuria (Supra) the Apex Court held that the detenue must surrender before filing writ petition and in the context of pre-execution challenge to detention order observed:- ....5. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution of India.......After surrendering it will be open to the respondent to amend his writ petition and to take all permissible legal grounds to challenge the detention order and these grounds will have to be considered by the High Court on their own merits after hearing the parties....� 9. This case does not fall within the outlined legal parameters so as to call for interference with the detention order at pre-execution stage. Detention order is passed under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. It is sought to be executed against the petitioner, the right person. This case does not fall within the outlined legal parameters so as to call for interference with the detention order at pre-execution stage. Detention order is passed under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. It is sought to be executed against the petitioner, the right person. There is no dispute that it has not been passed for a wrong purpose or on vague, extraneous or irrelevant grounds. It is equally not a fact, as conceded by the counsel, that the detaining authority had no authority to do so. The delay in executing the detention order, has sufficient ground to vitiate the detention, for which preposition counsel referred to T.A. Abdul Rehman Vs. State of Kerala and others (AIR 1990 SC: 225) and K.P.M. Bashir Vs. State of Karnatka and Anr. (1992 2 SCC 295) is a question that has to arise only after detention order is executed and not at pre-detention stage. This ground of attack was examined in the above-cited cases after the detenues were taken in preventive custody. The raised question of cessation of live and proximate link between grounds and purpose of detention is a challenge to the detention order on merits, apt to be considered after hearing parties, at post-execution/post-detention stage. The petitioners case is not falling within the limited scope of the challenge at pre-detention stage as set out in the aforementioned judgments. 10. In result, the petition is not maintainable at this pre-admission stage. This brings the petition to an end. If petitioner/detenue surrender or is taken in preventive custody, it will be open to him to throw challenge to his detention (order) as permissible under law. The interim application for stay of execution of detention order dated 11-06-1996 goes with the main petition. Accordingly disposed of.