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2004 DIGILAW 365 (JK)

Raja v. State Of J. &K.

2004-12-24

HAKIM IMTIYAZ HUSSAIN

body2004
1. This petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir has been filed by Mst. Raja Wife of Ab. Ahad Rather R/o Ajas Sonawari, District Baramulla who has been detained by respondent No. 3 under the provisions of Public Safety Act by means of the detention order No. 03/DMK/PSA of 2003 dated 16.8.2003. Petitioner has challenged the said detention on various grounds. It is alleged that the detenu was arrested on 14.8.2003 by the respondents and was subsequently detained under the provisions of J&K Public Safety Act in terms of the said order which order was neither communicated to the detenu nor was served upon him. It is submitted in the present petition that the detenu has not been appraised of his right of making representation to the Government against his detention thus the detention order is bad in the eye of law and cannot stand. It is further alleged that the grounds of detention as submitted are illegal, ambiguous and cannot form basis for detaining the detenu. There is no `live and proximate link between the grounds of detention and the period of detention and that the same is bad on the ground that the procedural safeguards prescribed under the J&K Public Safety Act read with Article 21 and 22 of the Constitution of India have not been followed/complied with. 2. The State has in its counter filed by respondent No. 3 stated that the detention of the detenu has been ordered on the basis of the grounds of detention which give detailed history of the activities of the detenu. It is further alleged that in addition to the involvement of the detenu in FIR of which reference is made in the grounds of detention and keeping in view his past conduct and antecedents history and the activities which are highly prejudicial to the security of the State, it was found imperative to detain the detenu under the provisions of J&K Public Safety Act, 1978. 3. Heard. Considered. A perusal of the grounds of detention shows that the detenu has been detained by means of the impugned order which reads as under:- "whereas Superintendent of Police, Kupwara vide his letter No. PROS/DET/2003/567-70 dated 6.08.2003 has produced material record such as dossier and other connecting documents in respect of Shri Ab. Ahad Rather S/o Lt. Gh. Mohd. Heard. Considered. A perusal of the grounds of detention shows that the detenu has been detained by means of the impugned order which reads as under:- "whereas Superintendent of Police, Kupwara vide his letter No. PROS/DET/2003/567-70 dated 6.08.2003 has produced material record such as dossier and other connecting documents in respect of Shri Ab. Ahad Rather S/o Lt. Gh. Mohd. Rather R/o Ajas Sonawari District Baramulla who has reportedly been arrested incase FIR No. 58/2002 U/s _ POTA, 302, 307, 102B RPC, 7/27 AA 32 peoples representation Act registered in Police Station Sogam. Whereas, I Abdul Majid Khanday District Magistrate, Kupwara has gone through the contents of dossier before me carefully in respect of the said person. Whereas, I am satisfied that with a view to prevent the said Shri Ab. Ahad Rather S/o Lt. Gh. Mohd. Rather R/o Ajas Sonawari District Baramulla from acting in any manner which is prejudicial to the security of the State, and it is necessary so to do. Now, therefore, in exercise of powers vested in me under section 8 of J&K Public Safety Act 1978, I Abdul Majid Khanday District Magistrate Kupwara hereby direct that the said, Shri Abdul Ahad Rather S/o Lt. Gh. Mohd. Rather R/o Ajas Sonawari District Baramulla be detained and lodged in Kotbelwal Jail Jammu for a period of 24 Twenty Four months." 4. In the ground of detention it is alleged that the detenu was served in Police Department of J&K Govt. as S.I. that he aided and abetted the activities of the militants, which were hazardous to the security of the State. After giving various alleged activities of the detenu the detaining authority has come to the conclusion that ordinary law of the land will not serve as a corrective so the detention of the detenu under the provisions of J&K P.S.Act, 1978 has become imperative. 5. Ld. Counsel for the petitioner would argue that the detention order cannot be maintained for the reasons that it has not been passed by the detaining authority on the recognized grounds contained in Section 8 of the J&K Public Safety Act. The detenu has been detained on the ground that ordinary law of the land will not serve as a corrective measure. This ground is not a valid ground, as submitted by the Ld. Counsel for directing the preventive detention. In this behalf he has relied Gh. The detenu has been detained on the ground that ordinary law of the land will not serve as a corrective measure. This ground is not a valid ground, as submitted by the Ld. Counsel for directing the preventive detention. In this behalf he has relied Gh. Nabi Dar v. State of J&K 2002 KLJ 637. This court in the said authority 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., 1994 SCC (Cri) 169 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 "Rameshwar 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 directions 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 judgement (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 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." 6. The said authority was followed by this court in other cases also including the cases of HCP NO. 183/03 titled Gh. Rasool Wani v. State HCP No. 16/2004 titled Tanveer Ahmed Mughal v. State. 7. In view of this authority the ground taken by the detaining authority cannot stand at all. 8. The detenu is already involved in the offences U/s POTA, 302, 307, 102-B RPC, 7/27 I.A.Act. AII these offences are heinous and there is no material to show that there is likelihood of release of detenu on bail or that he has applied for bail. It is submitted by the Ld. Counsel for the detenu that there is no likelihood of release of detenu on bail. The Ld. AII these offences are heinous and there is no material to show that there is likelihood of release of detenu on bail or that he has applied for bail. It is submitted by the Ld. Counsel for the detenu that there is no likelihood of release of detenu on bail. The Ld. Counsel has in this behalf relied upon 2001 (1) SCC 341 wherein dealing with the situation where the likelihood of being released was not available, the Apex Court has observed as under:- "As held in Bond 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 detenu is likely of be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit 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." 9. As is settled now the object of detaining a person is to prevent him from indulging in any activity which is prejudicial to the security of State or maintenance of public order. If a person is already in custody under ordinary criminal law in connection with an offence which is non-bailable and for which he is not ordinarily entitled to bail or is involved under a special offence which contain stringent provisions for bail, there would arise no requirement or necessity to take such a person in preventive detention. There will however, be no bar in passing an order for such a detention, if the detaining authority is subjectively satisfied about the same. There will however, be no bar in passing an order for such a detention, if the detaining authority is subjectively satisfied about the same. But in such a case, as held by the Apex Court Vijay Kumar v. State of J&K, (1982) 2 SCC 43, the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. 10. The principle laid down by the Supreme Court in Binod Singh v. District Magistrate AIR 1986 SC 2090, Romeshwar Sha v. District Magistrate AIR 1964 SC 334 and Ramesh Yadav v. District Magistrate AIR 1986 SC 315 is 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. 11. In Kamarunnissa v. Uniond of India AIR 1991 SC 1640, the Apex Court reviewed the whole case law on the subject and held:- "From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this court stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. What this court stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the high Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody." 12. Recently the Apex Court in T.P. Moideen Koya v. Govt. of Kerala (2004) 8 SCC 106 held that in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenu was likely to be released on bail. 13. 13. A Division Bench of this court in Mohammad Yousuf Sofi v. State of J&K 2003 (1) SLJ 218 dealt with the issue and relying upon an authority of the Apex Court reported as AIR 1990 SC 1196 laid down the following tests for issuing detention order under section 8 of the Public Safety Act in respect of a person who is already in custody: (a) that the detaining authority was aware of the fact that detenu was already in detention and (b) that there are compelling reasons justifying such detention because the person to be detained already being in custody cannot be expected to engage himself in the prejudicial activities and compelling reasons would Imply that there must be cogent material on the basis of which the detaining authority is satisfied (i) that detenu is likely to be released in the near future and (ii) that taking into account the nature of the antecedent activities of the detenu it was likely that after his release from custody he would indulge in the prejudicial activities and that it was necessary to detain him in order to present him from engaging in such activities." 14. The court held that once these tests are satisfied a detention order under Sec. 8 can be issued against a person who is in custody. 15. Thus under the provisions of the Public Safety Act and in of the case law on the subject- (a) If a person is in custody in respect of a criminal offence and there is no imminent possibility of his being released therefrom, or the nature of offences against him is such that there is no likelihood of grant of bail in his favour, the power of detention should not ordinarily be exercised. (b) There is however no bar in passing a detention order even against such person but in such a situation the detaining authority must be satisfied that for compelling reasons a preventive detention order needs to be made. (c) In such cases however, ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. (d) Detention of a person in custody can be ordered: (1) if the authority passing the order is aware of the fact that he is actually in custody. (d) Detention of a person in custody can be ordered: (1) if the authority passing the order is aware of the fact that he is actually in custody. The authority should disclosed such awareness in the grounds of detention; (2) if the authority has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. (e) Order of detention in such a case should be a speaking order disclosing the awareness of the authority of the fact relating to custody and his subjective satisfaction that there were compelling circumstances for such detention. The subjective satisfaction should be based on the cogent material before the authority. 16. We find that in the present case the detaining authority thus has not drawn subjective satisfaction about the detention of the detenu. There is no mention of the fact that the detenu has applied for bail in the criminal cases against him nor is there any satisfaction that there is likelihood of his release on bail. 17. For the aforesaid reasons, the petition is allowed and the detention order No. 03/DMK/PSA of 2003 dated 16.8.2003 is set aside with direction to the respondents to release the detenu namely Abdul Ahad Rather S/o Lt. Gh. Mohd. Rather R/o Ajas Sonawari District Baramulla from preventive detention forthwith, if not required in any other offence(s). 18. The Record produced by Ld. Dy. AG is returned to him in the open court.