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2007 DIGILAW 132 (JK)

Shamim Ahmad Beigh v. State Of J. &K.

2007-07-18

AFTAB ALAM, HAKIM IMTIYAZ HUSSAIN

body2007
1. Heard Mr. M.A. Qayoom, learned counsel appearing on behalf of the appellant and Mr. M.A. Rathore, Additional Advocate General, representing for the State. 2. This appeal is directed against the judgment and order dated 18.5.2006 by which a learned Single Judge dismissed the writ petition (OWP no. 189/2006) filed by the appellant, challenging the order of his detention passed under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. It is significant to note that the detention order was assailed while it was still unexecuted and that was one of the primary considerations before the Writ Court in passing the order coming under appeal. It may also be noted that the position remains the same; the impugned detention order remains unexecuted till date and the appellant (writ petitioner) continues to remain free. 3. The facts giving rise to the writ petition are brief and without any controversy. On 01.01.2005 the appellant (writ petitioner) was apprehended by the Special Operation Group, Anantnag and one magazine of AK 47, 12 rounds of AK 47, one hand grenade and 1 UBGL were recovered from his possession. The recovery gave rise to a substantive criminal case under FIR no. 3/2005 instituted under Section 7/25 of the Arms Act and the appellant was taken in custody in connection with that case. While he was in custody the District Magistrate, Anantnag passed an order of his detention under Section 8 of the Act on 07.01.2005. The appellant, from detention, challenged the detention order dated 07.01.2005 before this Court in HCP no. 94/2005. That writ petition was allowed by a learned Single Judge of the Court and the detention order was quashed by judgment and order dated 25.10.2005. 4. At this stage, it would be appropriate to know the ground on which the detention order was quashed as it would have a bearing on the subsequent developments in the case. 5. In the order dated 25.10.2005 the Court noted that the materials on which the satisfaction of the District Magistrate was based was not supplied to the detenue (appellant, writ petitioner) in any of the two languages that he understood, namely, Urdu and Kashmiri. The relevant extract from the order is as follows: - .....It is specifically pleaded on behalf of the detenue that he is an illiterate and does not understand any language other than Urdu or Kashmiri. The relevant extract from the order is as follows: - .....It is specifically pleaded on behalf of the detenue that he is an illiterate and does not understand any language other than Urdu or Kashmiri. It is further averred that he has not been provided with the translated script in Urdu or Kashmiri languages, the only languages he understands. Both these grounds of challenge have gone unrebutted. As regards non supply of the dossier, it is contended by the respondents in the counter that withholding of dossier and connecting documents does, in no way, affect the right of representation of the detenue. Thus it is manifestly clear that the respondents have failed to furnish the copy of dossier to the detenue notwithstanding that the detaining authority has based the order of detention on the dossier itself.� 6. Having noted that the materials in the dossier that formed the basis of the detention order were not given to the detenue, the Court referred to the decision of the Supreme Court in Sophia Gulam Mohammad Bham v. State of Maharashtra, AIR 1999 SC 3051, and found and held that the detenue was denied a reasonable opportunity to make a representation against his detention. The Court, accordingly, quashed the detention order and directed for the release of the detenue. Following the order of the Court the appellant was released. 7. Later, on 13.2.2006, the District Magistrate, Anantnag passed the second order of detention (coming under challenge before the Court) briefly stating the manner in which the previous order of detention was set aside by the Court and referring to FIR no. 3/2005 that had initially led to the arrest of the petitioner. This order of detention, as noted above, remains unexecuted and yet comes under challenge before the Court. 8. The learned Single Judge took note of the material facts and circumstances of the case, as indicated above, and relying upon the decision of the Supreme Court in Syed Tahir Bawamiya v. Joint Secretary to the Govt. of India and others, 2000 (8) SCC 630 held and found that no case was made out for any interference with the detention order. The learned Single Judge, accordingly, dismissed the writ petition. 9. Mr. Qayoom strenuously argued before us that the learned Single Judge failed to appreciate the true import of the Supreme Court decision in Syed Tahir Bawamiya v. Joint Secretary to the Govt. The learned Single Judge, accordingly, dismissed the writ petition. 9. Mr. Qayoom strenuously argued before us that the learned Single Judge failed to appreciate the true import of the Supreme Court decision in Syed Tahir Bawamiya v. Joint Secretary to the Govt. of India (supra). Learned counsel submitted that in Syed Tahir Bawamiya v. Joint Secretary to the Govt. of India (supra) the Supreme Court had enumerated five conditions or circumstances in which a detention order was to be interfered with by the Court even at a stage before its execution. The circumstances and/or conditions enumerated by the Supreme Court are as follows: - (i) that the impugned order is not passed under the Act which it is purported to have been passed. (ii) that it is sought to be executed against a wrong person. (iii) that it is passed for a wrong purpose. (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so.� 10. Mr. Qayoom submitted before us that the case of the appellant attracted three of the five conditions, namely, those enumerated at Serials 1,3 and 5. Learned counsel submitted that the second detention order was not passed under any provision of the J&K Public Safety Act, rather, it was passed contrary to its provisions. Learned counsel contended that the only provision relating to a fresh (second) detention order on the same facts on which an earlier detention order was passed was contained in Section 19 of the Act which is as follows: - Revocation of detention orders (1) Without prejudice to the provisions of section 21 of the General Clauses Act, Samvat 1977, a detention order may at any time be revoked or modified by the Government notwithstanding that the order has been made by any officer mentioned in sub-section (2) of section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention against a person on the same facts as an earlier order of detention made against such person in any case where - (i) the earlier order of detention or its continuance is not legal on account of any technical defect; or (ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect: provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under the earlier order of detention shall be excluded.� 11. Counsel further contended that there being no other provision in the Act, apart from Section 19, a fresh detention order on the same facts could only be passed subject to the conditions and limitations laid down in the Section. He submitted that in the case of the appellant the earlier detention order was not revoked by the Government but it was quashed by the Court. It, therefore, followed that a fresh (second) detention order could not be passed against the appellant on the same facts on which the earlier order was based. 12. In our view, the submission is quite fallacious. Section 19 is simply an enabling provision that allows the Government to remove or correct any technical defect or omission in the detention order before the matter may come up for judicial review before the Court. Section 19 cannot be taken as a bar against the exercise of power under Section 8 of the Act even though the detaining authority might be satisfied that the threat to the security of the State or the maintenance of public order continues to exist on the basis of the fact on which an earlier detention order was passed that was struck down by the Court on technical grounds. The position would be indeed different in case the earlier order was struck down by the Court not for any technical reason but on ground(s) touching upon the merits or substance of the case. The position would be indeed different in case the earlier order was struck down by the Court not for any technical reason but on ground(s) touching upon the merits or substance of the case. In that event it would be the Courts order (and not any provision of the Act) that would bar passing any fresh order of detention on the same facts. In the case in hand the position, as seen above, is quite different. The earlier detention order was quashed on the technical ground of non-supply of relevant materials to the appellant. We are, therefore, satisfied that there was no bar in exercise of the power under Section 8 of the Act, if the District Magistrate was satisfied that the threat to the security of the State or the maintenance of public order at the hands of the detenue continued to exist on the basis of the facts that led to the passing of the earlier order. 13. Mr. Qayoom next submitted that the case in hand equally attracted the condition enumerated at Sr. no. 3 of the decision in Syed Tahi Bawamiya™s case, that is to say, it was passed for a wrong purpose. In light of the fact and circumstances of which notice has been taken above, we are unable to accept the submission. 14. The next submission of Mr. Qayoom that the case also attracted the condition at Sr. no. 5 is also unacceptable. The submissions made in support of the point are mostly overlapping with what was submitted by Mr. Qayoom in support of the first submission and that we have already rejected. 15. On consideration of the submissions made by Mr. Qayoom and on going through the materials on record, including the order of the writ Court, we are satisfied that the matter does not warrant any interference in appeal. The appeal is dismissed.