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2001 DIGILAW 323 (JK)

Mushtaq Ahmed Mir v. State

2001-12-05

SYED BASHIR-UD-DIN

body2001
1. Subject Mushtaq Ahmed Mir Resident of Draway Nimatpora, Larnoo Anantnag was taken in custody on 21.3.2000 in FIR No, 24/2000 u/s 7/25 I.A. Act registered at P/S Dooru. Subsequently under order No. F-142/2229-35/DMA dated : 03.04.2000 of District Magistrate. Anantnag (Respondent No. 2). he has been detained U/s 8 of J&K P.S. Act, 1978 allegedly to prevent him from indulging in activities prejudicial to the security of the State. This detention order is under challenge in this petition. 2. Counter has been filed on behalf of respondents by the detaining authority (respondent No. 2) 3. Ld. counsel for the petitioner is questioning the legality of the order on following three grounds : First that the detenue is illiterate and the order and grounds of detention have not been read over and explained to the detenue, thereby detenue is prejudiced to make representation against the order of detention to the govt; Second that the grounds are based on the report/dossier of the concerned Police Station forwarded to the detaining authority by Sr. Superintendent of Police, Anantnag. The detaining authority has not applied mind to this report. Instead the contents of the Police dossier have been reproduced in the detention order. The detention order suffers from non-application of mind and third that the detenue was already in punitive custody and no bail application had been moved on behalf of the detenue, therefore, there was no reasons for the detaining authority to clamp the detention order. 4. The counsel for the respondents, Mr. R.Q. Gadda counters the above submissions. The counsel states that the order and grounds have been not only served on the detenue but the same have read over the explained to him in Kashmiri/Urdu language which he fully understood. Besides, he was informed of his right of making representation to the govt. against the order This was done when the detenue was taken in preventive custody and delivered to jail authorities pursuant to execution of the order. In reply to second ground of challenge, the GA submits that the detaining authority has on application of mind passed the detention order. The question of routine restatement or reproduction of the contents of the Police dossier in grounds is nothing but ipsi-dixit of the petitioner. In reply to second ground of challenge, the GA submits that the detaining authority has on application of mind passed the detention order. The question of routine restatement or reproduction of the contents of the Police dossier in grounds is nothing but ipsi-dixit of the petitioner. No less a person than the detaining authority has in counter stated that the detaining authority has on consideration and after going through the record on application of mind and on subjective satisfaction passed the detention order in question. The ground of challenge on this count is devoid of force and the grounds are based on facts and reality on ground level. 5. Lastly it is submitted that no doubt the subject was in punitive detention when the detention order in question was passed, but the reason for such action was the compelling reasons. In the context of history and antecedent activities of the subject and the common experience that the accused get bail from courts even in heinous crimes, it was felt necessary to prevent the subject from indulgence in subversive activities prejudicial to the security of the State. What the detenue challenges is not that the order with grounds was riot supplied to him but what he states is that being illiterate, order and grounds were not read over and explained to him. 6. In reply the detaining authority on the basis of record has averred that when the detenue was taken in detention on 11.04.2000 at P/S Dooru, "the contents of the grounds of detention were read and explained to detenue in Kashmiri/Urdu language which he fully understands. The detenue and the detention paper were handed over to Jail authorities on 12.04.2000, i.e. Kathua Jail authorities. Signatures and thumb impression to this effect has been obtained from him". From counter it is manifest that the grounds were given to detenue and explained to him, contents whereof he understood fully. He was even informed of his right to make representation to the Government against detention order. These grounds were read-over to detenue by Shri Assaduliah ASI NGO 4273 P/S Dooru, Anantnag. The detenue fully understood the contents of the order and grounds after same were read over and explained to him in the language which he fully understood. He was even informed of his right to make representation to the Government against detention order. These grounds were read-over to detenue by Shri Assaduliah ASI NGO 4273 P/S Dooru, Anantnag. The detenue fully understood the contents of the order and grounds after same were read over and explained to him in the language which he fully understood. Obviously in view of this categorical stance and counter statement on affidavit of detaining authority in absence of rebuttal, in the facts and circumstances of this case, it is concluded that the detenue was read-over and explained the order and grounds in the language which he fully undersoot and was also informed of his right of making representation to Govt. against the order. 7. The authority Smt. Razia Umar Bakshi vs. Union of India (AIR 198 SC 1751) is not applicable to the facts and circumstances of this case. The other two citations SLJ 1999 J&K 241 and SLJ 1996 J&K 301 too are not applicable to the facts and circumstances of this case. The authorities turn out on the fact of their respective cases. 8. The contention that the impugned detention order suffers from non-application of mind does not appear well founded. It is not denied that the detention order based as it is on grounds has its rootes in the report/dossier forwarded by Sr. Superintendent of Police, Anantnag to the detaining authority Dy. Commissioner, Anantnag. The detaining authority in counter affidavit has specifically stated "In reply to ground of challenge it is submitted that respondent No. 2 after applying his mind and after satisfying himself passed the order of detention against the detenue, which is evident from perusal of record as well as from the perusal of grounds of detention, hence the grounds of challenge is devoid of force of law and on this count petition deserves no consideration." 9. In the light of the above positive statement of the detaining authority, perusal of the grounds would show that the detaining authority has drawn its subjective satisfaction on record which speaks petitioners membership of H.M. and joining terrorist activities since 1997, getting training in arms and ammunition, planting lEDs leading to death of security personal and civilians, harbouring terrorists and motivating youths to join and perpetrate the terrorist activities and arrest of the subject and his involvement at least in three cases registered at P/s Doru. After detaining authority has drawn satisfaction on all this material it is not for this court while exercise powers under writ jurisdiction to interfere with the decision arrived at by the detaining authority to detain the subject. Neither any pleadings nor any allegation of malafide exercise of power is raised in this case. 10. In PI. Lakhanpaul vs. Union of India (AIR 1967 SC 908 at Page 915), a five member constitutional bench of the court in the context of satisfaction of the empowered authority in the context of Defence of India Rules 1962 observed : "...So long as that decision was arrived at on materials, since this court does not sit in appeal against such a decision, it would not ordinarily examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the court had examined them it would have come to a different conclusion it is, therefore, not possible to agree with the contention that this is a case of a malafide exercise of power or a case of non-application of mind by the authority concerned." 11. There is no denying of the fact even from other side that subject Mushtaq Ahmed Mir was in punitive detention when on 03.04.2000 he was detained under section 8 of J&K P.S. Act, 1978. His order of detention is passed notwithstanding, he being detained since 21.03.2000 in FIR 2412000 of P/S Dooru. The law is settled that a person in custody can be put under preventive detention but the requirements for passing a detention order in such case is that the detaining authority was aware pf the detenue being in detention and further that there were compelling reasons to justify preventive detention despite the detenue being under custody. See Dharmendra Suganchand Chelawat case (AIR 1990 SC 1196). The matter is to be examined from stand point of compelling reasons. If the authority had the material before it to serve basis of satisfaction of likelihood of release of detenue from custody in near future coupled with the nature of antecedent activities of the detenue, the detaining authority has the powers to pass the detention order.. 12. Detenue in terms of grounds is involved in FIR 10/2000 u/s 302 RPC, 3/4 Exp. Sub. Act registered at P/s Dooru; FIR No. 14/2000 U/s 3/4 Exp. Sub. 12. Detenue in terms of grounds is involved in FIR 10/2000 u/s 302 RPC, 3/4 Exp. Sub. Act registered at P/s Dooru; FIR No. 14/2000 U/s 3/4 Exp. Sub. Act 307, 302 RPC again registered at P/s Dooru and FIR No. 24/2000 U/s 7/25 IA. Act. The detenue was in custody in the later case when the order of detention was passed. The detention order shown that the detaining authority was very much aware about the detenue being in custody and further the detaining authority has apprehension that the detenue may get released on bail in which eventuality the security of the State is endangered. In the counter the detaining authority has again stated that he has apprehension based on the circumstances of the case that he may be released on bail and in which case the very purpose of keeping him away from terrorist activities shall be defeated. Added to this notwithstanding henious nature of the offences alleged against detenue, it is common experience, without any need to pronounce upon the reasons here, that the people do get bail for reasons good as well as bad in such type of cases. It is not necessary in all circumstances that before the detaining authority apprehends a detenue to come out on bail, a bail application should have been necessarily moved on behalf of detenue before the competent forum. The word apprehension that detenue may get bail only implies a reasonable guess/comprehension on the part of the detaining authority that the detenue may succeed to get the bail. It is not a requirement of law that in such cases for the detaining authority to apprehend the subject getting re-ieased on bail, the subject must have moved application for bail. In this case apart from the awareness and apprehension of the detaining authority it is to be noted that the detenue is involved at least in three criminal cases with allegations of exploding of improvised explosive devices and recovery of arms and ammunition. Besides providing shelter, food and hide-outs to terrorists of H.M. organization. The other allegation against him is motivating youths to join the armed war against the govt. established, by law in order to carry forward the pro-claimed ais and objectives of H.M. All this is based on material/dossier supplied to the detaining authority by the Sr. Superintendent of Police, Anantnag. Besides providing shelter, food and hide-outs to terrorists of H.M. organization. The other allegation against him is motivating youths to join the armed war against the govt. established, by law in order to carry forward the pro-claimed ais and objectives of H.M. All this is based on material/dossier supplied to the detaining authority by the Sr. Superintendent of Police, Anantnag. Obviously there is material before the detaining authority on which the detaining authority has passed satisfaction and after reckoning the nature and range of antecedent activities of the detenue, the authority has come out with a case of compelling reasons to warrant preventive detention of the subject while in custody in regular case: Viewed thus this contention also fails. 13. In result, the detention is not shown invalid and vitiated on the grounds raised and argued as above. The petition stands dismissed.