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2004 DIGILAW 309 (JK)

Gh. Nabi Dar v. State Of J. &K.

2004-11-02

R.C.GANDHI

body2004
Per R. C. Gandhi, J (Oral): 1. Detenue, Ghulam Nabi Dar son of Mohammad Sultan Dar R/o Baba Raz Krankshivan Colony, Sopore through his father seeks to quash the detention order No.78 of 2003 dated 22.2.2003 passed by respondent No.2 in exercise of his power under section 8 of the J&K Public Safety Act, 1978 (hereinafter to be referred to as "the Act.") directing preventive detention of the detenue for a period of 24 months. 2. The detention order has been challenged on various grounds including that the detenue was already in the custody of the respondents in FIR No. 236 of 2002 for commission of alleged offences under section 7/25 IAA registered with Police Station Sopore and without disclosing compelling reasons the detention order has been passed which is not sustainable. 3. The respondents have filed the counter affidavit wherein, they have controverted the averments set up in the petition. It is also stated by the respondents that the respondents have shown awareness with regard to the custody of the detenue with the respondents in their reply affidavit. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner has submitted that the detenue was apprehended on 30.10.2002 and booked in FIR No. 236 of 2002. The detention order has been passed on the ground that remaining at large of the detenue shall be highly prejudicial to the security of the State in the event of his release of bail as contained in the grounds of detention. His submission is that the detaining authority has shown the compelling reasons that in case of his release on bail; the detenue can reactivate himself to the activities prejudicial to the security of the State. The satisfaction of the detaining authority that in the event of his remaining at large shall be highly prejudicial to the security of the State is not borne out by the record. The detaining authority should have recorded his satisfaction on the basis of the record, such as, an application moved for grant of bail or other relevant material. In the Counter Affidavit or the record maintained by the respondents, produced before the court for perusal, it (sic) not made out that such a satisfaction has been made on the basis of some record. In the Counter Affidavit or the record maintained by the respondents, produced before the court for perusal, it (sic) not made out that such a satisfaction has been made on the basis of some record. It is not denied by the respondents that the detenue has not applied for bail and was in the custody of the respondents. While the detenue is in the custody of the respondents, the detaining authority must be aware that the detenue is in the custody and that there is likelihood of his being released on bail. The delenue has not applied for bail, therefore, the satisfaction that in the event of his release on bail is not based on any cogent material. Learned counsel for the respondents, for maintaining the detention order, has relied upon the judgment reported in (2003) 8 SCC 342. Para 14 whereof is relevant. Relevant part of the Para is extracted below and reads: "Preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc., ordinarily, it is not needed when the detenue is already in custody." 6. The aforesaid judgment is of no help to the respondents. In this judgment also, the Court has specifically recorded that ordinarily preventive detention is not needed that while the detenue is in custody of the respondents. The detaining authority must show its awareness to the fact of custody of the detenue. However, the detaining authority can direct the preventive detention where he is reasonably satisfied that there exists cogent material and there is likelihood of his release. In the present case there is no likelihood of release of the detenue as he has not applied for bail. 7. Learned counsel for the petitioner has relied upon (2001) 1 SCC341 wherein dealing with the situation where the likelihood of being released was not available, the Supreme Court has observed as under: - "As held in Binod Singh case (1986) 4 SCC 416, 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. There must be cogent material before the officer passing the detention order that the detenue is likely of be released on bail. There must be cogent material before the officer passing the detention order that the detenue is likely of be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixt of the officer passing the order of detention. In the present case the requirement that there is likelihood of the detenus being released on bail was, however, not available in the reasoning as provided by the officer concerned. The reasoning available is the "likelihood of his moving an application for bail" which is different from likelihood to be released on bail. This reasoning is not sufficient compliance with the requirements as laid down. The available cogent material in this case was the likelihood of having a bail application moved in the matter but not obtaining a bail order. Therefore, the detention order is liable to be quashed." 8. The detaining authority has not drawn the subjective satisfaction as required by law considering the existing material and has erroneously drawn subjective satisfaction that remaining at large of the detenue shall be prejudicial to the security of the state. 9. For the aforesaid reasons, this petition is allowed and the detention order No. 78 of 2003 dated: 22.02.2003, is set aside with direction to the respondents to release the said detenue from preventive detention forthwith, if not required in any other offence.