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2004 DIGILAW 235 (JK)

Syed Khalid Geelani v. State

2004-08-10

R.C.GANDHI

body2004
Detenu Syed Khalid Geelani S/o Syed Mohammed Shafi R/o Bowan Rajwar Handwara, Kupwara through his father seeks to quash the detention Order No. 28/DMK/PSA of 2004 dated 19.1.2004 passed by District Magistrate, Kupwara in exercise of powers under Section 8 of the J&K Public Safety Act, 1978 (hereinafter called `Act) directing preventive detention of the detenu. Detention order has been challenged on various grounds including the ground that the detaining authority has without jurisdiction directed preventive detention under challange. The detention of the detenu has been passed on the ground that ordinary law of the land is not enough as a corrective measure to prevent the detenu from the activities prejudicial to the Security of the State. The detention order is not sustainable as the court has already settled this question that the detaining authority has the jurisdiction to direct preventive detention of the detenu, on the ground stipulated in Section 8 of the Public Safety Act. Respondents have filed counter affidavit stating therein that the detention does not suffer from any illegality. The statutory procedural requirement in terms of Sections 8, 14 & 17 of the Act has been complied with. The grounds of detention have also been served in compliance of Section 13 of the Act. Heard Learned counsel for the parties and perused the record. Learned counsel for the petitioner has submitted that this court has settled the proposition of law that a citizen can be detained by the detaining authority on the grounds mentioned in Sec. 8 of the Act. The detention of the detenu has been directed on the ground that ordinary law of the land is not enough as a corrective measure. According to the learned counsel from the petitioner this ground does not fall within Section 8 of the Act for arriving subjective satisfaction by the detaining authority. Relying upon the judgment of this Court delivered in Ghulam Nabi Dar v. State of J&K and Ors. reported in 2002 KLJ 637. Learned counsel has submitted that the detention order deserves to be quashed. Dealing with the argument of the learned counsel therein that ordinary law of land is no ground for directing preventive detention, the court observed as under:- "The compelling reasons spelled out by the detaining authority are, that ordinary criminal law is not enough to prevent detenu from such subversive activities. Dealing with the argument of the learned counsel therein that ordinary law of land is no ground for directing preventive detention, the court observed as under:- "The compelling reasons spelled out by the detaining authority are, that ordinary criminal law is not enough to prevent detenu from such subversive activities. Similar proposition of law was also in HCP No. 97/2000 titled Bilal Ahmad Bhat v. State and Ors. wherein while dealing with it, satisfaction and the reasons disclosed by the detaining authority while directing the 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 v. 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 and 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 "Rasmeshwar Shaw v. District Magistrate, Burdan". To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelwat v. Union of India wherein three Judge Bench, after considering all the earlier relevant direction 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 was 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 respondent at the time of directing his preventive detention. The detaining authority has not brought on record any cogent material that ordinary law of the 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." 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 the 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." The above reported judgement applies fully to the case of the detenu and the detention order thus cannot be maintained. For the aforesaid reasons this petition is allowed. The detention order No. 28 DMK/PSA of 2004 dated 19.01.2004 set aside. The respondents are directed to release the detenu forthwith from the said preventive detention, provided he is not required in any other offence.