Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 384 (JK)

Ab. Rashid Mir v. State Of J. &K.

2002-12-10

B.L.BHAT

body2002
1. Detenue Abdul Rashid Mir S/O Mohd Ramzan Mir R/O Puthshahi Lolab, Distt. Kupwara, has through his father Mohd Ramzan Mir, sought indulgence of his detention order No. DMK/PSA/36 of 2000 dated: 19-01-2001, inter-alia maintaining in the petition filed by him under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K State, that he was arrested by security forces in the month of July, 2000 and was booked in case FIR No. 230/2000 for offences U/s 120-B, 121, 122, 212 RPC and 7/25 Arms Act registered by Police Station Kupwara; that during his arrest in the said FIR the impugned order came to be issued wherein the detaining authority has not assigned any compelling reasons for detaining the detenue under Public Safety Act; that the detenue is 3rd primary pass and is not able to read and writ english language when the grounds of detention supplied to him are in English language, as such were never understandable and intelligible to him; that the procedural safeguards guaranteed under Article 21 and 22 of the Constitution of India have not been resorted to by the detaining authority at the time of passing the impugned order of detention in as much as he was not informed that he can file a representation against his detention: that the order of detention is passed on non-existent and irrelevant material and the same is coached in ambiguous language and is based on mere surmises; that the petitioner has not so far approached before any court of law for release on bail for the offences allegedly committed by him as communicated in the FIR. 2. On admission of this petition, notice came to be issued to the respondents for filing their counter affidavit pursuant whereof respondent No. 2 came to file the counter affidavit wherein he has controverted all the averments of the petition, but at the same time he stated that the impugned order of detention came to be issued on 19-01-2001 when the detenue came to be taken into preventive detention on 19-01 -2001; that the grounds of detention came lo be served upon the detenue. 3. Heard learned counsels appearing on behalf of the parties. 4. Mr. 3. Heard learned counsels appearing on behalf of the parties. 4. Mr. G.N. Shaheen, learned counsel appearing on behalf of the petitioner has laid much stress on the grounds; that the detenue at the time of issuance of the detention order was already in the custody of police and no compelling reason has been disclosed either in the grounds of detention or in the detention order for issuance of the impugned detention order. He has further submitted that the detenue came to be arrested by security forces in the month of July. 2000 when he was booked in FIR No. 230/2000 for offences punishable U/s 120-B. 121, 122. 212 RPC and 7/25 Arms Act registered at Police Station Kupwara and the impugned detention order came to be recorded on 19-01 -200 L. that to say, well after five months. 5. Admittedly, at the lime of issuance of the impugned detention order the detenue was already in the custody of police in FIR No. 230/ 2001 for offences U/s 120-B. 121, 122, 212 RPC and 7/25 Arms Act of Police Station Kupwara therefore, it was obligatory on the part of detaining authority/respondent No. 2 to disclose the compelling reasons in the detention order as well as in the memo of grounds of detention to the effect that if the detenue being released on bail for the offences disclosed in the said FIR and there is every likelihood that he may indulge again in the activities prejudicial to the security of the State. Thus, impugned detention order appears to have been without recording subjective satisfaction with respect to above factors which effects it adversely. In this behalf. reference is made to a case titled Surya Prakash Sharma Vs. State of U.P. 1995 AIRSCW 1841. in which their lordships of the Apex Court have laid down the following propositions:- The questions as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has been engaging the attention of this court since it first came up for consideration before a constitution bench in Rameshwar Shah Vs. District Magistrate Burdwan. (1964(4 SCR 921. To eschew prolixity we refrain from detailing all those cases except that of Dharamendra Suganchand Chelwat Vs. District Magistrate Burdwan. (1964(4 SCR 921. To eschew prolixity we refrain from detailing all those cases except that of Dharamendra Suganchand Chelwat Vs. Union of India (AIR 1990 SC 1196) wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shah (supra) answered the question in the following words: The decision 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 detention must show that (i) that 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.� When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained though the grounds of detention indicate the detaining authoritys awareness of the fact that the detenue was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averments made in grounds of detention that if the aforesaid Sun;] Prakash Sharma is released on bail lie may again indulge in serious offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order solely on the basis of a solitary murder cannot be said to be proper and justified.� 6. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order solely on the basis of a solitary murder cannot be said to be proper and justified.� 6. Having regard to the afore law, from the perusal of the file it appears that the detaining authority/respondent No. 2 was aware of the fact that the detenue is in the custody of police in the indicated FIR, but has failed to record the compelling reasons for issuing the impugned detention order. This vitiates the subjective satisfaction of respondent No. 2, as a result of which the impugned detention order cannot sustain. 7. This takes me to another ground stressed by the learned counsel for the petitioner that there is delay in issuance of detention order when the detenue was arrested more than five months early to the passing of the impugned detention order and the detaining authority has failed to explain the delay on his part in issuing the said order of detention. This non-disclosure of delay on the part of detaining authority for the issuance of detention order also effects the impugned detention order adversely (Sec 1993 Suppl.(2)SCC61). 8. Viewed thus, the impugned detention order is liable to be quashed and is accordingly quashed. It is ordered that the detenue namely Abdul Rashid Mir S/O Mohd Ramzan Mir R/O Puthshahi Lolab, District Kupwara, be set at liberty forthwith provided he is not involved or required in any other case.