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2002 DIGILAW 37 (JK)

Gh. Nabi Dar v. State Of J. &K.

2002-02-28

R.C.GANDHI

body2002
1. Petitioner seeks to quash the detention order No. DMS/PSA/53 dated. 19.01.2002 passed by the respondent No.2, District Magistrate, Srinagar, in exercise of powers u/s 8 of J&K Public Safety Act, 1978 (hereinafter called "the Act"), directing preventive detention of the detenu Ghulam Nabi Dar S/o Ali Mohammad Dar R/o Gotapora Ammada Kadal, Lalbazar Srinagar. The detention of the detenu has been confirmed by the Government in exercise of powers u/s 17 of the Act for a period of 24 months. 2. The detenu has challenged the detention order on various grounds including that the material relied upon for directing preventive detention, has not been supplied to the detenu. Grounds of detention have not been supplied and read over to him and he has not been informed to make a representation to the Government against the detention order in terms of Section 13 of the Act. It is also one of the grounds that the subjective satisfaction arrived at by the detaining authority that ordinary criminal will not deter the detenu from such activities, therefore, it is imperative to detain him under the provisions of Public Safety Act, is not sustainable in law. 3. Respondents have filed counter affidavit stating therein, that the detenu was taken into custody in FIR No. 8/ 2002, registered at Police Station, Lalbazar, Srinagar, on 13.01.2002, for the alleged commission of offence under section 13 of Unlawful Activities Act. The detention order has been approved by the Government on 28.01.2002 within the statutory period. The detention order was executed on 8.2.2002. The case of the detenu was referred to the Advisory Board which has submitted its report on 27.3.02 to the Government for continuous detention of the detenu. The detention order has also been confirmed by the Government in terms of Section 17 of the Act vide Government order No. 723/02 dated 4.4.2002. It is also stated in the reply that the detention order does not suffer from any procedural breach. 4. Heard learned counsel for the parties. It is admitted case of the parties that the detenu was already in custody of the respondents in FIR No. 8/02 registered at P/S Lalbazar, Srinagar. The respondent has the jurisdiction to direct preventive detention despite the fact that the detenu is in their custody, but while doing so, the detaining authority has to spell out the compelling reasons. It is admitted case of the parties that the detenu was already in custody of the respondents in FIR No. 8/02 registered at P/S Lalbazar, Srinagar. The respondent has the jurisdiction to direct preventive detention despite the fact that the detenu is in their custody, but while doing so, the detaining authority has to spell out the compelling reasons. The compelling reasons spelled out by the detaining authority are, that ordinary criminal law is not enough to date. The detenue from such subversive activities. Similar Proposition of law was also in HCP. No. 97/2000 titled Bilal Ahmad Bhat v/s State and ors, wherein while dealing with it, satisfaction and the reason disclosed by the detaining authority while directing preventive detention of the detenu is that the ordinary law of the land is not sufficient to deter the detenu from his activities. This cannot be accepted either as a ground of detention. While dealing with a similar proposition on facts and law, the Supreme Court in "Surya Prakash Sharma Vs. State of U.P. reported in 1994 SCC (Cri) 1691 in para 5 has held that: - "The question as to whether and in what circumstances an order for preventing detention can be passed against a person who is already in custody has had been engaging the attention of this court since it first came for consideration before a Constitution Bench in "Rameshwar Shaw Vs. District Magistrate, Burdan". To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelwat Vs. Union of India wherein three Judge Bench, after considering all the earlier relevant directions including Rameshwar Shaw answered the question in the following words: "The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose must show that (i) the detaining authority was aware of the fact that the detenu us already in detention and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that: (a) the detenu is likely to be released from custody in the near future and (b) that 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." The detaining authority has to disclose the compelling reasons. If the reasons are not disclosed the impugned order suffers for non-application of mind. Grounds of detention indicate the awareness of the detaining authority that the detenu was in custody of the respondents at the time of directing his prevetive detention. Teh detaining authority has not brought on record any cogent material that ordinary law of land is not sufficient to deter the detenu from such activities. Such subjective satisfaction of the detaining authority cannot, therefore, be said to be proper and justified..." 5. The case of the detenu is fully covered by the judgment (supra). Respondents have not shown any material to make out that the ordinary law is not enough to prevent the detenu despite the fact that the detenu was already taken into custody for alleged commission of offence under Section 13 of Unlawful Activities Act. The subjective satisfaction arrived at, under such circumstances cannot be said to be proper and justified. The detention order, therefore, deserves to be quashed. 6. For the aforesaid reason, the petition is allowed. The detention order No DMS/PSA/53 dated 19.01.2002 is quashed. Respondents are directed to release the detenu Gh. Nabi Dar S/o Ali Mohammad Dar R/o Gotapora Ammada Kadal, Lalbazar, Srinagar, forthwith provided not required in any other offence. Petition disposed of.