Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 115 (JK)

Nissar Ahmad Dar v. State

2002-04-29

SYED BASHIR-UD-DIN

body2002
1. Subject Nissar Ahmad Dar is detained U/s 8 of J&K Public Safety Act. 1978 and lodged in District Jail. Udhampur under order No. 70 of 2001 dated: 10-02-2002 of District Magistrate, Baramulla (Annuexure P-1). This order is impugned on number of grounds. However, the counsel confines his submissions to following two grounds :- First that there has been inordinate delay of over two months in executing the detention order when in fact detenue was with the State Govt., in substantive offence(s) and no explanation or reasons are given for delayed execution which vitiates the order. Secondly that the above ground of delay in execution coupled with the fact that no application for bail has been made in the substantive offences, renders the order to suffer from non-application of mind and order is vitiated. 2. Respondent in terms of counter filed by the detaining authority (respondent No. 2) and submissions of the Govt. Advocate has resisted the challenge to the detention order. It is submitted that though there has been delay of 71 days in execution/implementing the order but the detenue was already with the State Govt. in a substantive offences under FIR No. 131/2000 U/s 7/25 I. A. A. registered at P/S Bandipora. It is also submitted that the detaining authority has applied its mind to all material facts and circumstances appearing on record. Merely because no application has been moved that is of no consequence as the detaining authority has the apprehension that the detenue may get bail and his being at large is deterimental to the security of the State. 3. Record reveals that the detention order has been passed on 10-02-2001 when the subject was with the authorities of State Govt. since 04-07-2000, the date of his arrest in FIR No. 131/2000 U/s 7/25 IAA registered at P/S Bandipora. This order has been executed on 11-05-2001 and the subject was taken in preventive detention on this date. Obviously apart from period of detention in substantive offences of the subject has been taken in preventive detention for 71 days after the order was passed on 10-02-2001. Neither in counter nor the Govt. Advocate has any explanation to explain the delayed execution of the warrant. There is not even slight murmur in the counter of any reason why the order of detention was not executed all along. Neither in counter nor the Govt. Advocate has any explanation to explain the delayed execution of the warrant. There is not even slight murmur in the counter of any reason why the order of detention was not executed all along. It is not alleged that the detenue was absconding or evading arrest and rightly so as the detenue was with the State Govt. in punitive detention for at least over six months by the date, the order of detention was passed. The record as also grounds show that it was within contemplation of the authority that the detenue was already being held in punitive detention. In absence of any explanation or reason forth coming from record or otherwise, the order of detention appears to be vitiated. The live and proximate link between the grounds and purpose of detention is snapped and in any case quite stale when comprehended within the ambit of taw tethered to unreasonable delay in execution of the detention order and impact of non-application of mind by the detaining authority. 4. In K.P.M. Basheer Vs. State of Karnataka and Anr (AIR 1992 SC 1353) it is observed :- "..... Under these circumstances, we are of the view that the order of detention cannot be sustained since the live and proximate link between the grounds of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him..." The other contention that as bail application has not been moved in the matter, therefore, passing of detention order while detenue was under punitive detention would render order bad, cannot be accepted. The detaining authority has given the compelling reasons" in terms of the grounds for ordering preventive detention of the subject. The detaining authoritys observation that the detenues being at large is deterimental to the security of the State, is very much intact, even if bail application is not moved as it speaks of only apprehension on objective consideration of the detenues case on the part of the detaining authority. There has been material before the authority on which it has drawn satisfaction that the detenue if released from custody, after taking into account his antecedantal activities, detenue is likely to indulge in. activities deterimental/prejudicial to the security of the State. There has been material before the authority on which it has drawn satisfaction that the detenue if released from custody, after taking into account his antecedantal activities, detenue is likely to indulge in. activities deterimental/prejudicial to the security of the State. The detaining authority has thereby complied with the mandate of law in Rameshwar Shaws case (1964) 4 SCR 92) here three Honble Judges of the Apex Court answered the questions raised here to as under:-"The decisions referred to above lead to the conclusion that an order for detention can be val-idly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." In that view of the matter contention is bereft of any merit. 5. In result, for the view taken on the first contention of delayed execution of the detention order and its impact on this case, the detention order and the consequent detention is vitiated and unsustainable under law. The impugned order No. 70 of 2001 dated: 10-02-2001 is quashed. Respondents/detaining authority/ officer having physical corpus of the detenue Nissar Ahmad Dar S/O Ab. Razak Dar R/O Onagam Bandipora is directed to release him from custody and set him free forthwith provided he is not required in any other case, offence or matter. Copy of the order be given to petitioner free of cost and communicate the order to concerned. Record produced by Mr. R.Q. Gudda, GA has returned to him in open court.