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2003 DIGILAW 84 (JK)

Mohd. Younis Khan v. State

2003-04-10

Y.P.NARGOTRA

body2003
Y.P. Nargotra, J. 1. The detaining authority passed the following order under No. DMS/PSA/69 dated 6.2.2002. Whereas I, Abdul Hamid , IAS District Magistrate Srinagar am satisfied on the basis of records received from SSP Srinagar that with a view to prevent Sh. Mohd. Younis Khan S/o Shri Gh. Qadir Khan R/o Tarbal Nawa Kadal Srinagar, from acting in any manner prejudicial for the maintenance of security of the state it is necessary to do so. Now, therefore, in exercise of the powers conferred by Section 8 of the J&K Public Safety Act, 1978, I, District Magistrate Srinagar hereby direct that the said Sh. Mohd. Younis Khan S/o Sh. Gh. Qadal Khan R/o of Tarbal Nawa Kadal Srinagar be detained and lodged in Kot Bhalwal Jail Jammu." 2. The detenu was already in the custody of the police for having been arrested on 12th of November 2001 in connection with FIR 209/2001 under Section 7/25 Indian Arms Act registered in Police Station Safa Kadal Srinagar. Pursuant to the detention order the detenu was taken into preventive custody on 15th Feb. 2002. The detention order has been challenged in this Habeas Corpus petition on various grounds. LC for the petitioner has however restricted the grounds of challenge which are being dealt with hereunder; 3. Firstly LC for the petitioner has argued that detenu was already in custody and had not applied for bail, therefore, there was no likelihood of his being released on bail and as such the detention order is illegal. In support of his contention he has relied upon the case reported in (2001) 1 SCC 341. In this case the Honble Supreme Court has held as follows: 4. In Augustin decision this court also placed strong reliance on an earlier but of cited decision of this Court in Binod Singh v. District Magistrate Dhanbad wherein it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be ipso dixit of the officer passing the order concerned in the matter under reference ought to be noticed and the same reads as below: Even though prosecution proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against Shri Amrital. I am satisfied that there compelling necessity in view of the likelihood of his moving an application for bail, and in the event of his being granted bail, the likelihood of his moving an application for bail and in the event of his being granted bail, the likelihood of his indulging in illicit traffic in narcotic drugs as is evident from the trend of his activities to detain him under the prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. 5. It is this reasoning which the Ld. Advocate contended that the High Court should have held to be completely erroneous in the matter of being on the basis of an order of detention. 6. The requirement as noticed above in Binod Singh case that there is likelihood of the petitioners being released on bail� however is not available in the reasoning as provided by the officer concerned. The reasoning available is the likelihood� of this moving and application for bail which is different from likelihood to be released on bail. The reasoning in our view, is not sufficient compliance with the requirements as laid down." 4. On the basis of the aforesaid judgment Ld. Counsel has argued that in the absence of bail application the detaining authority could not have validly drawn the satisfaction that there was any likelihood of release of the detenu in the near future. On the other hand. Ld. Counsel for the State has argued simply because the detenu was already in the custody of the police when the detention order was passed. The detention order is not rendered invalid because it could be validly passed when the detaining authority was satisfied that detenu was likely to engage in the activities prejudicial to the security of the state after his release. In AIR 1990 SC 1196 it was held by their Lordships". The detention order is not rendered invalid because it could be validly passed when the detaining authority was satisfied that detenu was likely to engage in the activities prejudicial to the security of the state after his release. In AIR 1990 SC 1196 it was held by their Lordships". The decision referred to above lead to the conclusion that an order for detention can be validly passed against the person in custody and for that purpose, it is necessary that the grounds of detention must show that (i) that the detaining authority was aware of the fact that the detenu is 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 implied that there must be cogent material before the detaining authority on the basis of which it must be satisfied that (a) the detenu is likely to be released from custody in the near future; and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody, he would indulge in pre-judicial 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 detenu 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 Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenu might to 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." 5. To put it differently, the satisfaction of the detaining authority that the detenu might to 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." 5. From the above quoted authorities of the Apex Court the legal position which emerges is that a detaining authority can pass a detention order against the person who is already in the custody of the police, where there is cogent material available to show that the detenu was likely to be released in near future and if released he would engaged himself in the activities prejudicial to the security of the state. The cogent material in my view can be the material showing the nature the allegations for which the detenu was detained in the custody of the police, if the nature of the offence based upon such allegations is such that there is likelihood of the release of detenu on bail in near future, the detention order under Section 8 of the Public Safety Act can be validly passed. In the instant case the detenu was in custody in connection with the offence under Section 7/25 Indian Arms Act and this offence is not of such kind where bail can never be granted. The fact of the not making of the bail application in my view is of no consequence therefore, there is no merit in the submission of the Ld. Counsel. 6. It has been next contended by Ld. Counsel for the petitioner that in the instant case the detaining authority has drawn the satisfaction that detenu was likely to engage in the activities prejudicial to the security of the state in the event of his release in the near future on the basis of material furnished by SSP Srinagar but alongwith the grounds of detention copies of such material were not supplied to the detenu and it has rendered his detention illegal, being violative of Section 13 of the PSA and Article 22(5) of the Constitution of India. LC for the state has admitted that no such material has been furnished to the detenu. However, according to him this failure does not render the detention illegal, because the grounds of detention supplied to the detenue have referred to the same elaborately. 7. LC for the state has admitted that no such material has been furnished to the detenu. However, according to him this failure does not render the detention illegal, because the grounds of detention supplied to the detenue have referred to the same elaborately. 7. The question arises is there is any requirement of law providing for furnishing of such material to the detenu. In 2002 vol. 2 SLJ 574 para 4 it has been held: 4. Obviously the basic facts given in the grounds and subjective satisfaction of the detaining authority District Magistrate Srinagar is based and derived from the report given by SPP Srinagar to the detaining authority. On the detention file it is found that the dossier/feed back report of SSP Srinagar is available. Admittedly neither this report nor other material referred in the grounds like FIR and recovery of arms and ammunition have been supplied to detenu. The record also shows that the detenu has been furnished the order and the grounds alone but not the material the basis of the basic facts and information subject of the detention order. In such circumstances compliance with the mandatory provisions of Article 22(5) is not complied with, in absence of material/document/report referred in the grounds, the detenu cannot be said to be communicated detention order with grounds. This being so the compliance with second limb of affording detenu meaningful and effective representation against the Govt. is equally denied to him.� 8. In the present case it is the admitted position that the detaining authority has drawn the satisfaction on the basis of the material supplied to him by SSP Srinagar, that material undisputedly has not been supplied to the detenu, therefore, there is breach of safeguards enshrined in Section 13 of the PSA and Article 22(5) of the Constitution of India, which renders the detention order and the detention of the detenu illegal. 9. For the aforesaid reasons without referring to the other grounds of challenge the detention order appears to be invalid and, as such, is quashed and it is ordered that the detenu namely Mohd. Younis Khan S/o Ghulam Qadir Khan R/o Tarbal Nawakadal Srinagar be released forthwith, if not required in any other case.