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2003 DIGILAW 267 (JK)

Nazir Ahmad Malla v. State

2003-09-02

R.C.GANDHI

body2003
JUDGMENT 1. Petitioner - detenue, Nazir Ahmad Malta S/o Mohd. Abdullah Malta R/o Rajpora Palhallan, Rattan seeks to quash detention order no DMK/ PSA/54 of 2001 dated 6.7.2002, passed by the District Magistrate, Magistrate Baramulla, in exercise of powers under section 8 of the Jammu and Kashimar Public safety act, 1978 (hereinafter to be referred to as " the act) directing preventive detention of the detune which subsequently has been confirmed by the respondent Government for 24 months, detention of the detune which subsequently has been confirmed by the respondent Government for 24 months. 2. The detention order has been challenged on various grounds including that the District Magistrate has illegally exercised the power and jurisdiction to detain the detenu could have been proceeded under the substantive panel law. It is also one of the grounds that detenue was already in the custody of the respondents and despite that preventive detention of the detenue has been directed vide impugned order without showing the compelling reasons by the Detaining authority. 3. Respondent have filed the Counter Affidavit controverted the grounds taken in the memorandum of the petition. 4. Heard learned counsel for the parties and perused the record. 5. The-perusal of the record reveals that the detnue has been taken in preventive custody vide impugned order on the alleged grounds which are contained in the grounds of dention, the relevant portion of which is extracted below and reads as: "You are a Diploma Engineer by profession. You came into contact with Bashir Ahmad Rather for trafficking in fake currency notes in the State by cheating the innocent and the illiterate people, and to destablize and shatter the economy of the State. You being an un-employee, and being close friend of one Farooq Ahmad introduced Haji Bashir Ahmad Rather of Ganderbal for counter feiting fake currency notes. You alongwith Bashir Ahmad Rather and Rafiq Ahmad visited Patna Biharto exchange genuine currency notes with fake currency notes but failed. Thereafter your procured a computer for counter feiting currency notes and installed the same in the house of Bashir Ahmad Rather at Ganderbal. You also managed the services of Gh. Nabi Khan for operating of the machine and subsequently in printing of the fake currency notes. Thereafter your procured a computer for counter feiting currency notes and installed the same in the house of Bashir Ahmad Rather at Ganderbal. You also managed the services of Gh. Nabi Khan for operating of the machine and subsequently in printing of the fake currency notes. You also developed the contacts with Mst.Shamshada Manager Co-operative Bank Ganderbal who assured her help in circulation of fake currency notes through her bank and accordingly 40 lakh of fake currency notes were counted deited by you and your associates. You provided Rs.1500/- of fake currency notes to one of your friend namely Fayaz Ahmad Mir R/o Athora and were on way to Sopore to put in circulation the said amount. However BSF patrolling party while conducting search of the vehicles at Sopore arrested you and your associate and recovered Rs.1500/- of fake currency from you. The Police has so far been able to make a recovery of 26 lacs and 40 thousand of fake currency notes. Case FIR No, 116/02 u/s 489-A, 489-B, 489-C RFC stand registered at Police Station at Sopore." 6. Section 8 of the Act enumerates elaborately and specifically the activities and the grounds which give jurisdiction to District Magistrate or any other mentioned in Sub Section 2 of the Section 8 to direct preventive detention of the detune if he is found involved in the said activities, the petitioner detenu has been found involved in the said activities. The petitioner detenu has been found involved in circulation of counter feiting fake currency notes along with his associate. This situation is not covered in those specified activities and the grounds under Section 8 of the Act for directing preventive detention. 7. Learned counsel for the respondents in reply has submitted that detenu has been detained for his activities prejudicial to the security of the State which includes the circulation of counter feiting fake currency notes also. It is not made out by any reference of law or judgment that any citizen having involved in case of counter feiting fake currency can be detained on the ground of being threat to the security of the State. Notwithstanding that it is also submitted that the Security of State has wider meaning and includes this situation also. It is not made out by any reference of law or judgment that any citizen having involved in case of counter feiting fake currency can be detained on the ground of being threat to the security of the State. Notwithstanding that it is also submitted that the Security of State has wider meaning and includes this situation also. One can understand that the Security of the State is under threat if a citizen is found involved in the activities which are designed, to over throw the Government establish by law or any establishment of the Government created to protect the integrity and sovereignty of the State is challenged or any act is done to damage or jeopardize it. Circulation of counter feit currency as is in this case does not fall under any of these situations, which can be said to create a situation of a threat to the security of the State. Has it been so, the Legislature would have added this criminal activity also in Section 8 of the Act. These are the two different situations. The petitioner detenu is not involved in any militancy related activities or other activities which are specified in Section 8 of the Act. It is also not a ground for detention of the detenu that the counter feit currency has been received from any militant outfit and is being used to advance the cause of any such outfit which is to destabilize the Government duly established by law. Petitioner detenu could have been dealt with under the provisions of other substantive laws which are sufficient to deal with such alleged offences. I do not find that the District Magistrate has the jurisdiction in such cases to direct preventive detention in exercise of powers under Section 8 of the Act. 8. Another plea of the learned counsel for the petitioner is that the detenu was already in the custody of the respondents in FIR No. 116 of 2002 for commission of alleged offences under section 489- A, 489-B, 489-C RPC registered with Police station Sopore and the detaning Authority was under legal obligation to record the compelling reasons for preventive detention of the detune already in the custody of respondents. The purpose of preventive detention is to prevent the detenu from his such activities. The purpose of preventive detention is to prevent the detenu from his such activities. He was already in the custody of respondents in substantive offences and being so he was not in such position to carry out his such activities which stood prevented by his custody with the respondents. Therefore, law makes it obligatory upon the detaining Authority to show the compelling reasons for directing preventive detention in such situation. If the compelling reasons are not splet out, the detaining Authority cannot resort to invoke section 8 of the Act. This proposition of law was also in issue in habeas Corpus petition No. 137/ 2001 titled Abudal Rashid BhatVs State of Jammu and Kashmir and another, wherein it has been held: "The perusal of the grounds of detention and the Counter Affidavit do not reveal that the Detaining Authority was satisfied that despite the custody of the detenue with the respondents he is still required to be detained in preventive detention. It is settled proposition of law that Detaining Authority on subjective satisfaction derived on the basis of record, can direct preventive detention, while the detenue is already in custody against the substantive offences but for doing so the Detaining Authority has to disclose the compelling reasons for such detention. It has not been disclosed either in the Counter Affidavit or in the grounds of detention. The only subjective satisfaction derived by the Detaining Authority is that the ordinary law of the land is not sufficient to curve the detenue from continuing such anti-state activities. It is no ground for directing preventive detention." 9. The Detaining Authority has not disclosed the compelling reasons for the preventive detention, as noticed above, either in the grounds of detention or in the Counter Affidavit, in absence of which the detention or in the Counter Affidavit, in absence of which the detention order, being suffering from legal infirmity, cannot be maintained. 10. For the reasons stated herein-above, the Detention Order deserves to be quashed, which is accordingly quashed Respondents are directed to release the detenu Nazir Ahmad Malla S/ o Mohammad Abdullah Mall R/o Rajpora Palhallan, Rattan forthwith if not required in any other case. Petition is accordingly disposed of.