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2004 DIGILAW 366 (JK)

Ab. Ahad Rather v. State Of J. &K.

2004-12-24

HAKIM IMTIYAZ HUSSAIN

body2004
1. This Habeas Corpus Petition has been filed by Abdul Ahad Rather S/o Mohd. Mansoor Rather R/o Tekipora, Sogam, Kupwara (the detenu) through his father Mohd. Mansoor Rather. It is alleged that the detenu came to be arrested on 3.06.2003. He was later booked in FIR No. 34/03 under Sections 307,149,120 RPC, and 7/25 Arms Act of Police Station Lalpora, Kupwara, FIR No. 58/2002 of P/S Sogam for offences u/s _ POTA, 302, 307,120 B RPC, 7/25 A.A., FIR No. 83/2003 of P/S Kupwara u/s 302,307 RPC, 7/25 AA, and FIR N. 85/2002 P/S Sogam, u/s 302 RPC, 7/25 Arms Act. The grounds of detention as issued by respondent No. 2 shows that the detenu was serving in Police Department of J&K Government as Selection Grade Constable. The main allegation against him is that he was working over ground worker of J.E.M, the unlawful organisation and that his aim and object was to indulge in such nefarious activities which were highly prejudicial to the security of the State. The grounds of detention gives various activities in which the detenu has allegedly indulged. Ultimately the detaining authority has come to the conclusion that ordinary law of the land will not serve as a corrective, hence, his detention under the provisions of J&K Public Safety Act 1978 (for short the Act) becomes imperative. 2. The impugned order. No. DMK/PSA68-70 dated 12.09.2003 reads as under: "Whereas, you have been detained vide order No:07 DMK/PSA of 2003 dated 12.09.2003 made by me under section 8 of J&K public Safety Act 1978. Now, therefore, in pursuance of sub section 2 of section 13 of the said Act, you are hereby informed that your detention has been ordered on the ground specified in the annexure hereto. You may inform the Home Department J&K Govt. Srinagar if you would like to be heard in person by the Advisory Board. You may make a representation to the Government against the said detention, order, if you so desire." 3. The detention order has been challenged on various grounds. You may inform the Home Department J&K Govt. Srinagar if you would like to be heard in person by the Advisory Board. You may make a representation to the Government against the said detention, order, if you so desire." 3. The detention order has been challenged on various grounds. It is alleged that 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 and that the order is not sustainable in view of the law laid down by this Court in various authorities. 4. Respondents have in their counter affidavit stated that as the activities of the detenu are prejudicial to the security of the state his detention was found absolutely necessary and, accordingly, he was ordered to be detained by respondent District Magistrate, Kupwara vide order No. 07 DMK/PSA of 2003 dated 12.09.2003 with a view to prevent the detenu from acting in any manner prejudicial to the security of the State. 5. Heard. Considered. Learned counsel for the petitioner has vehemently argued that the only ground taken by the detaining authority to detain the detenu is that the ordinary law of the law will not serve as a corrective, hence his detention has become imperative. He has referred to the judgment of this Court delivered in Gh. Nabi Dar v. State of J&K and others, 2002 KLJ 637 and has argued that in view of this authority the ground is no more available to the State to detain the present detenu. 6. This Court has in the above cited 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 or detention." 7. This authority was followed by this Court in Mohd. Rustum Lone v. State HCP NO. 209/2003 decided on 10.8.2004. 8. This cannot be accepted either as a ground or detention." 7. This authority was followed by this Court in Mohd. Rustum Lone v. State HCP NO. 209/2003 decided on 10.8.2004. 8. In view of this authority the ground taken by the detaining authority in the present case cannot stand. 9. The detenue in the present case was, at the time of his detention, already in custody in connection with the criminal cases. In view of he law laid down by the Apex Court in T.P. Moideen Koya V. Govt. of Kerala (2004) 8 SCC 106, if a person is in custody and there is no imminent possibility of his being released from such custody, the power of detention should not ordinarily be exercised. There must be cogent material before the authority passing the detention order for inferring that the detenue was likely to be released on bail. The court held:- "The very object of passing a detention order being to prevent the person from acting in any manner prejudicial to maintenance of public order or from smuggling goods or dealing in smuggled goods, etc. normally there would be no requirement or necessity of passing such an order against a person who is already in custody in respect of a criminal offence where there is no immediate possibility of his being released. But in law there is no bar in passing a detention order even against such a person if the detaining authority is subjectively satisfied from the material placed before him that a detention order should be passed." The court while referring to Binod Singh v. District Magistrate AIR 1986 SC 2090, observed (at para 21) "The principle 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. There must be cogent material before the authority passing he detention order for inferring that the detenu was likely to be released on bail." In the present case there is no subjective satisfaction recorded by the detaining order nor is clear as to whether the detenue has applied for any bail or that was there any likelihood of his release on bail in the cases against him under the criminal law. 10. The detenu was arrested on 3.6.2003 and his detention has been ordered on 12.9.2003. 10. The detenu was arrested on 3.6.2003 and his detention has been ordered on 12.9.2003. If there were compelling reasons to take him into preventive custody, then why it took such a long time for the authority to decide it is also not clear from the record. 11. The detention order was passed in the case on 12.9.2003 and as per the record made available, the order was executed on 27.9.2003. The detenue was available with the authorities as he had already been placed in custody for the criminal offences. The inordinate delay in executing the warrant of detention has not been explained. 12. In Ghulam Nabi Bhat v. State or J&K 2003 (1) SLJ 218, a division Bench of this court held that unexplained delay in execution of the detention warrant throws doubt on the genuineness of the satisfaction of the detaining authority and vitiates the detention order and detention under the Public Safety Act. The court was considering the correctness of the proposition of law propounded in the judgment of the single Bench rendered in Showkat Ahmed Bakshi v. State & Ors. 2000 SLJ 700 and concurring with a Division Bench authority of this court in Ghulam Rasools case observed: (at para 16) "Thus as per the view of learned Division Bench any delay more so unexplained in execution of the detention warrant tantamounts to manipulation on the part of he detaining authority as well as the executing agencies, such delay throws doubt on the genuineness of the satisfaction of the detaining authority and therefore detention is rendered illegal. We concur with the view of Division Bench. That in the facts and circumstances of a case, unreasonable delay may vitiate detention. We may add here another reason for holding that unexplained delay affects the legality of the detention. If undue delay of such a nature is allowed to occur in the execution of the detention order from which it can be assumed that the nexus and proximity between detention and the object of the detention has broken. Such delay will render the detention illegal. 11. Under these circumstances we are of the view that the order of detention cannot be sustained since the `live and proximate link between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him. Such delay will render the detention illegal. 11. Under these circumstances we are of the view that the order of detention cannot be sustained since the `live and proximate link between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him. As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone. We are not dealing with other contentions raised in the Memorandum of appeal as well as in the writ petition." For the reasons stated above we answer the reference by saying. (a) the judgment rendered in the case Showkat Ahmad Bakshi v. State and others, SLJ 2000 page 700 does not lay down the correct position of law; (b) Inordinate unexplained delay in execution of the detention order upon a person in custody does not contravene the safeguards enshrined in Section 13 of Public Safety Act. However such delay vitiates the detention order and detention under the Public Safety Act." 13. In view of this position of law, the detention order in the present case cannot stand. 14. Another important aspect of the present case is that in the grounds of detention it is alleged that the present detenu came into contract with the militants through one Rusum Lone SPO. In this behalf the detaining authority has observed as under: "You are serving in Police Department of J&K Govt. as Selection Grade Constable and were working as over ground worked of JEM, the unlawful organisation. Your aim and object was to indulge in such nefarious activities which are highly prejudicial to the security of the state. You engaged yourself in providing shelter, information and transport to the foreign militants. Your activities are grave danger to the security of the state. You hatched criminal conspiracy with foreign militants of JEM, LET and HM, the unlawful organizations. In the year 2002, you were posted as PP Sogam which was upgraded as Police Station Sogam. You alongwith Rustum Lone SPO had a meeting with foreign militants, prominent among them were accompanied by other 5-6militants." 15. Said Mohammd Rustum Lone was also kept under detention by the State by means of detention order No. 04/DMK/PSA of 2003 dated 12.09.2003 passed by District Magistrate, Kupwara. You alongwith Rustum Lone SPO had a meeting with foreign militants, prominent among them were accompanied by other 5-6militants." 15. Said Mohammd Rustum Lone was also kept under detention by the State by means of detention order No. 04/DMK/PSA of 2003 dated 12.09.2003 passed by District Magistrate, Kupwara. His detention was challenged and by means of a decision of this Court in HCP No. 209/2003 decided on 10.08.2004 titled Mohd. Rustum Lone v. State his detention has already been quashed and the Court has directed to release the detenu forthwith. In view of this fact also the detention order against the present detenu cannot stand. 16. For the aforesaid reasons this petition is allowed. The detention order No. 07 DMK/PSA of 2003 dated 12.09.2003 is set aside. The respondents -- State is directed to release the detenu namely Abdul Ahad Rather S/o Mohd. Mansoor Rather R/o Tekipora, Sogam, District Kupwara, forthwith from the said preventive detention provided he is not required in any other offence.