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2002 DIGILAW 391 (JK)

Bilal Ahmad Bhat v. State

2002-12-15

R.C.GANDHI

body2002
1. Petitioner/detenue has challenged the detention order No. DMK/SA/06 dated: 04-02-2000 passed by the respondent No. 2 in exercise of his powers under section 8 of the J&K Public Safety Act, 1978 (hereinafter to be referred as "the Act"), directing the preventive detention of the detenuefor a period of twenty months. 2. The detention order has been challenged on the ground that the grounds of detention havebeen read over to the detenue but have not bee explained in Kashmiri language which language the detenue only understands. The detaining authority has arrived at a subjective satisfaction that ordinary law of the land is not sufficient to deter the detenue from activities prejudicial to the security of the State which according to the learned counsel for the petitioner is non-application of mind and which is not based on cogent material. The respondents were provided an opportunity to file the counter affidavit which has not been filed. 3. Heard the learned counsel for the parties, perused the pleadings. The respondents have failed to file the counter and have also not produced the record of detention. 4. Learned counsel for the petitioner has submitted that the detenue was already in the custody of the respondents and the respondents were under obligation to show the compelling reasons for directing the preventive detention, despite his being in custody of the respondents. It is settled proposition of law that the detaining authority can direct preventive detention of the person already in their custody but while doing so the detaining authority has to discharge the obligation of showing compelling reasons in the grounds of detention. Perusal of the grounds of detention reveal, that the detaining authority was aware of the fact that the detenue was apprehended by the police in FIR No. 39/99 registered in Police Station, Trehgam. The subjective satisfaction and the reason disclosed by the detaining authority while directing preventive detention of the detenue is that the ordinary law of the land is not sufficient to deter the delenue from his activities. This cannot be accepted either as a ground of detention, while the detenue is already in the custody of the respondents. While dealing with a similar proposition on facts and km the Supreme Court in "Surya Prakash Sharma Vs. This cannot be accepted either as a ground of detention, while the detenue is already in the custody of the respondents. While dealing with a similar proposition on facts and km 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 preventive detent ion can be passed against a person who is already in custody has had been engaging the attention of this court since it first came up for consideration before a Constitution Bench in "Rameshwar Shaw Vs. District Magistrate, Burderwan". To eschew prolixity we refrain from dealing all those cases except that of Dharmendra 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: (SCCp;754para21) "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 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 implies 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) 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 detenue was in custody of the respondents at the time of directing his preventive detention. The detaining authority has not brought on record any cogent material that ordinary law of land is not sufficient to deter the detenue from such activities. Such subjective satisfaction of the detaining authority cannot, therefore, be said to be proper and justified. 5. The detaining authority has not brought on record any cogent material that ordinary law of land is not sufficient to deter the detenue from such activities. Such subjective satisfaction of the detaining authority cannot, therefore, be said to be proper and justified. 5. For the aforesaid reasons, the petition is allowed. The impugned order is quashed and the respondents are directed to release the detenue forthwith provided he is not required in any other offence.