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2008 DIGILAW 205 (JK)

Gh. Mohd. Bhat v. State

2008-05-23

HAKIM IMTIYAZ HUSSAIN

body2008
1. Ghulam Mohammad Bhat S/o Jalal-ud-Din Bhat R/o Hyderpora, Budgam (the detenue) has been detained by the District Magistrate, Udhampur under section 8 of Jammu & Kashmir Public Safety Act, 1978 (for short the Act) vide Order No. PSA-2007/17 dated 19.12.2007. His son namely Irfan Ahmad Bhat (the petitioner) has, through the medium of the present petition challenged the order of detention on various grounds inter-alia that a copy of the order of detention has not been furnished to the detenue, that there were no compelling reasons for directing preventive detention of the detenue with the detaining authority, that the grounds on the basis of which the detenue has been detained under the provisions of the Act are not only ambiguous, uncertain and untenable but are also untrue and that the proper procedure has not been followed by the detaining authority while directing preventive detention of the detenue. 2. Petitioner has on these grounds, prayed for quashment of the detention order. 3. Respondents have filed their reply through Shri O.P. Kalandaria, District Magistrate Udhampur who has stated that the detenue came to be detained under the provisions of the Act vide order No. PSA-2007/17 dated 19.12.2007 with a view to prevent him from acting in any manner which is prejudicial to the security of the State. The detention of the detenue was ordered in view of his activities being prejudicial to the security of the State. The respondents state that the warrant was executed and the detenue was taken into preventive custody on 27.12.2007 after the contents of warrant were read over and explained to him in Urdu/ English languages, which he understood fully as in lieu thereof, the detenue has put his signature on the executed copy of detention warrant on its endorsement. The detenue was informed vide letter No. 156-58/DMU dated 19.12.2007 about the detention and about his right to submit representation against his detention to the Government, but he did not choose to file any representation. 4. Heard. I have considered the matter. I have perused the record pertaining to the detention of the detenue. 5. Mr. M.A. Qayoom learned counsel for the petitioner has assailed the order of detention on three main grounds. He contends that the petitioner was already in preventive detention, though released on parole, second detention was not proper. 4. Heard. I have considered the matter. I have perused the record pertaining to the detention of the detenue. 5. Mr. M.A. Qayoom learned counsel for the petitioner has assailed the order of detention on three main grounds. He contends that the petitioner was already in preventive detention, though released on parole, second detention was not proper. It is further submitted by him that there were no compelling reasons for the detaining authority to direct preventive detention of the detenue as such there is complete non application of mind on the part of detaining authority. The learned counsel states that the letter dated 19.12.2007 asking the petitioner to file representation to the order of detention is dated 19.12.2007 while as order of detention was executed and the grounds of detention were served on the petitioner on 27.12.2007 as such the letter asking him to file representation becomes meaningless. Learned counsel has also submitted that the letter directing the detenue to file his representation shows that the representation was to be submitted to the Govt. while as at the relevant time the matter was still under the consideration of the detaining authority. 6. The order of detention passed by the District Magistrate is based on the grounds of detention, a copy of which has been placed on file as Annexure-D. 7. The grounds of detention state that the detenue is the legal advisor to All Party Hurriyat Conference (Geelani) and is also the main brain behind raising of Hawala money for terrorist activities, representative for Hizb-ul-Mujahideen terrorist outfit and Hurriyat Conference which has its deep rooted links/ in and spearheading insurgency in the State of J&K and other parts of the country with sole motive to liberate and seek succession of State from Union of India by waging war against the lawfully established Government by indulging in subversive and disruptive activities against the State and by inculcating separatist feelings and creating disturbances, disruption, panic, scare, alarm and terror amongst the peace living people and by causing killing of innocent people whom they consider obstruction for achievement of their nefarious designs. 8. The grounds of detention show that the detenue is involved in case FIR No. 252/07 under sections 17, 18, 21 24 and 40 of Unlawful Activities (Prevention) Amendment Act, 2004 registered at Police Station Udhampur, in which it is alleged that he gave Rs. 8. The grounds of detention show that the detenue is involved in case FIR No. 252/07 under sections 17, 18, 21 24 and 40 of Unlawful Activities (Prevention) Amendment Act, 2004 registered at Police Station Udhampur, in which it is alleged that he gave Rs. 2.50 lacs to one Jamali Khan for its delivery to Syed Ali Shah Geelani, Chairman, Tehreek-E-Hurriyat. There are other allegations of receiving of Hawala money and arranging/ providing funds to the separatist and terrorist organisation by the detenue for which various cases like FIR NO: 95/2007 Under sections 10, 17, 18, 20, 21 Un-Lawful Activities (Prevention) Amendment Act, 2004 and 120-B/121-A RPC of Police Station Ramban have been registered against him. 9. From the grounds of detention as also from the petition it appears that earlier also the petitioner was put under preventive detention vide order No. DMS/PS A/1902-05 dated 2.1.2005 by District Magistrate, Srinagar. This order of detention was challenged by the petitioner through a writ petition but the Court on consideration of the matter dismissed the petition vide judgment dated 27.9.2002. Thereafter the petitioners case has been considered by the Government for his release on parole and vide Govt. order No. Home N/PBV/2270 of 2002 dated 11.11.2002, he was released on parole from Central Jail, Sangroor. 10. Learned counsel for the petitioner has while referring to this fact submitted that since with the release of detenue on parole the order of detention does not come to an end, the petitioner continues on the earlier detention order as such a second detention for a period of another two years impugned in the present petition, would not lie. In this behalf the learned counsel has placed reliance on Section 20 (6) of the Act which provides that the period of temporary release under the section shall not count towards the period of detention undergone by the person. 11. On consideration of the matter, I do not find any force in the submissions of Mr. Qayoom in this behalf. Parole, as has been held by the Courts, is release of a prisoner temporarily for a special purpose, on a promise of good behavior. Section 20 of the Act gives powers to the Government to order temporary release of a person detained in pursuance of detention order, for any specified period either without conditions or upon such conditions specified in the order. Section 20 of the Act gives powers to the Government to order temporary release of a person detained in pursuance of detention order, for any specified period either without conditions or upon such conditions specified in the order. Under sub-section (6) of Section 20, the period of release shall not count towards the total period of detention undergone by the person under the section. The order of parole and the effect of conditions put in the order, would remain in force only for the period, the detention has been ordered and on expiry of such period, the main order itself would come to an end and with that would come to an end the conditions put in the order of parole. No doubt the period for which a detenue remains on parole does not count for the period of detention, the terms of detention however, would not get stopped with the release of the detenue under parole. The period of parole will not, therefore, interrupt the period of detention mentioned in the order and the order would come to an end on expiry of the same. Since earlier order admittedly was for a period of two years, the order of detention made in the year 2002 came to an end with the expiry of period two years as such the second detention order cannot be assailed on this ground. 12. I find no force in the submissions of Mr. Qayoom that the letter dated 19.12.2007 addressed by the District Magistrate Udhampur to the detenue was not in accordance with law as it directed filing of representation before the Govt., on the date when even the order of detention had not been executed and the grounds of detention were not made known to the detenue. 13. Perusal of the record would show that though the letter addressed to the detenue is dated 19.12.2007, the same has been served on the detenue on 27.12.2007 when the warrant of detention was executed and the grounds of detention were read over and explained to the detenue. 14. That the petitioner was asked to file a representation before the Govt. Perusal of the record would show that though the letter addressed to the detenue is dated 19.12.2007, the same has been served on the detenue on 27.12.2007 when the warrant of detention was executed and the grounds of detention were read over and explained to the detenue. 14. That the petitioner was asked to file a representation before the Govt. against the order of detention and not before the District Magistrate also does not make any difference as the purpose of the letter was to inform the detenue that he has a right to file representation, which is the requirement of the Act and which I find was duly complied with. 15. I, however, find due force in the submissions of Mr. Qayoom, so far the plea regarding non-application of mind on the part of detaining authority while directing preventive detention of the detenue, is concerned. 16. The grounds of detention would show that at the time the petitioner was put under preventive detention he was already in custody in a criminal case, the details of which have been given in the grounds of detention and have been noticed above. This being the factual position, the District Magistrate concerned should have satisfied itself about the compelling reasons for the preventive detention of the detenue. 17. The only compelling reason given by the District Magistrate is as under: - Whereas, there is likelihood that if you may be released on bail in near future and your being at large will continue your subversive and anti national activities. Therefore, it is necessary to detain you under Public Safety Act. 18. This in my view is not sufficient to direct preventive detention of the detenue. 19. The question as to whether and in what circumstances an order for preventive detention may be passed against a person who is already in custody has come up for consideration before the Apex Court and this Court in a number of cases. In Rameshwar Shaw v. District Magistrate. Burdwan, AIR 1964 SC 334 a Constitution Bench of the Apex Court observed that the question as to whether an order for detention can be passed against a person who is in detention or in jail will always have to be determined in the circumstances of each case. In Rameshwar Shaw v. District Magistrate. Burdwan, AIR 1964 SC 334 a Constitution Bench of the Apex Court observed that the question as to whether an order for detention can be passed against a person who is in detention or in jail will always have to be determined in the circumstances of each case. It was held that: As an abstract proposition of law, there may not be any doubt that S. 3(1) (a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed, against a person in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person, and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. In Masood Alam v. Union of India, AIR 1973 SC 897, it has been held that merely because the person concerned has been served with the order of detention while in custody when it is expected that he would soon be released that service cannot invalidate the order of detention. In Masood Alam v. Union of India, AIR 1973 SC 897, it has been held that merely because the person concerned has been served with the order of detention while in custody when it is expected that he would soon be released that service cannot invalidate the order of detention. The Court observed as under: The real hurdle in making an order of detention against a person already in custody is based on the view that it is futile to keep a person in dual custody under two different orders but this objective cannot hold good if the earlier custody is without doubt likely to cease very soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease. In Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur AIR 1975 SC 90, it was held that an order of preventive detention can be validly made and served upon a person who is committed to jail custody in security proceedings. On the basis of his antecedent activities in the proximate past, the detaining authority can reasonably reach its subjective satisfaction about his tendency or inclination to act in a manner prejudicial to the maintenance of public order, after his release on the termination of the security proceedings under the Code. In Dulal Roy v. District Magistrate. Burdwan, AIR 1975 SC 1508, it was held that if a person was in jail custody and there was no immediate or early prospect of his being released on bail or otherwise, the authority would not legitimately be satisfied on the basis of his past history or antecedents that he was likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. In Vijay Kumar v. State of Jammu and Kashmir, AIR 1982 SC 1023 the Supreme Court observed: Preventive detention is resorted to, to thwart future action. If the detenue is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be need to order preventive detention of a person already in jail. If the detenue is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be need to order preventive detention of a person already in jail. But in such a situation 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 need to be made." In Alijan Mian v. District Magistrate, Dhanbad, AIR 1983 SC 1130, in the grounds of detention it was stated that the subject is in jail and is likely to be released on bail and that he was allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order. After considering the said statement in the grounds of detention the Apex Court held: The position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time. In such a situation there could be no apprehension of breach of `public order from the petitioners. But the detaining authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood, it was necessary to prevent them from acting in a manner prejudicial to public order. In Ramesh Yadav v. District Magistrate, Etah, AIR 1986 SC 315 in the grounds of detention it was mentioned that the detenue had filed an application for bail and there was positive apprehension that after having bail he would come out of jail and would indulge in activity prejudicial to the maintenance of the public order. The Supreme Court observed: On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail is granted, challenge against that order in the higher forum had to be raised. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail is granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial-prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in a series of cases relating to the preventive detention. In Suraj Pal Sahu v. State of Maharashtra. AIR 1986 SC 2177 it was observed: If there was an imminent possibility of the man being set at liberty and his detention coming to an end, then it appears, as a principle, if his detention is otherwise necessary and justified then there is nothing to prevent the appropriate authorities from being satisfied about the necessity of passing an appropriate order detaining the person concerned. In Binod Singh v. District Magistrate, Dhanbad, Bihar, AIR 1986 SC 2090, it has been laid down: If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenue, the detenue was in jail. There is no indication that this factor or the question that the said detenue might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenue might be released then these should have been made apparent. In Smt. Shashi Aggarwal v. State of U.P., AIR 1988 SC 596, the Supreme Court while referring to the decision in Ramesh Yadav v. District Magistrate, Etah, (supra) has observed: What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act. The Court further observed. The Court further observed. Every citizen in this country has the right to have recourse to law. He has the right to move the Court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenue, if enlarged on bail, would act prejudicially to the interest of public order." In `Vijay Kumar v. Union of India, AIR 1988 SC 934, it has been held that two facts must appear from the grounds of detention, namely: (i) awareness of the detaining authority of the fact that the detenue is already in detention, and (ii) there must be compelling reasons justifying such detention, despite the fact that the detenue is already under detention. In N. Meera Rani v. Govt. of Tamil Nadu, AIR 1989 SC 2027 the legal position has been summed up as under: We may summarise and reiterate the settle principle. Subsisting custody, of the detenue by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; 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 etc. ordinarily it is not needed when the detenue is already in custody; the detaining authority must show its awareness to the. fact of subsisting custody of the detenue and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him, from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position. 20. This appears to us to be the correct legal position. 20. These cases were referred in Dharmendra Suganchand Chelawat v. Union of India AIR 1990 SC 1196 and it was observed that these decisions lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The Court observed that: 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 detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, 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. There is no bar in directing preventive detention of a person who is in custody, Supreme Court on examination all cases decided by the Court on the issue observed in Sanjeev Kumar Aggarwal v. Union of India AIR 1990 SC 1202 as under: It could thus be seen that no decision of this Court has gone to the extent of holding that, order of detention can validly be passed against a person in custody under any circumstances. Therefore the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenue who is really in jail. In Kamarunnissa v. Union of India, AIR 1991 SC 1640 it was held 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. 21. The Court observed that 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. The Court held: 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 stems 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 detenues were in custody. 22. This Court has also examined this issue in a number of cases. Some of the cases where the issue was considered are Mohammad Youaf Sofi v. State of J&K, 2003 (I) SLJ 218, Mst. Raja v. State 2005 (I) SLJ 381. Mushtaq v. State 2004(I) SLJ 166, Mohd Yousf v. State 2003 (I) SLJ 144, Rashid v. State 2000 (II) SLJ 467, Bilal Ahmad Bhat v. State 2002 (II) SLJ 478, Dharam Singh v. State 1994 (I) SLJ 269, Showkat v. State 2000(II) SLJ 700. 23. These authorities lay down that even in a case where a person is in custody in a criminal case, he can be placed under detention and the order can validly be passed where the detaining authority feels it essential to detain him to prevent him from indulging in a prejudicial activity. In such a case, however, the authority passing the order must be aware of the fact that he is actually in custody. In such a case, however, the authority passing the order must be aware of the fact that he is actually in custody. The authority must have reason to believe, on the basis of reliable material placed before him, that there is a real possibility of such person being released on bail, and that on being so released he would in all probability indulge in such activity. Thus there must be compelling reasons for the detention of the person who is already in custody. Detaining authority must be satisfied on the basis of available cogent material about likelihood of the detenue being released on bail. Mere stating that there was likelihood that the person will be released on bail is not sufficient. There must be sufficient material to come to such a conclusion and the detention order or the grounds of detention must show the satisfaction of the authority. The authority while making the detention order must show his awareness regarding the fact that the detenue is in custody, that he is likely to be released on bail and that if he is so released he may again indulge in prejudicial activities, failure to do so will make the order of detention as bad in law. 24. In Dharam Singh v. State, 1994 (I) SLJ 269 it was held that if the detenue is involved in a non-bailable offence and no application for grant of bail has been filed, preventive detention cannot be ordered on the ground that the detenue is likely to be released on bail and assigning the reason of the apprehension in the mind of detaining authority about the detenues being released on bail is wholly impermissible. The Court observed: The case here of course is entirely different. The detaining authority will be wholly unjustified, if he orders detention of a person under preventive detention who already stands arrested in substantive offences, when such a person had not even applied for bail. As already noticed, this is all the more glaring when the offences for which he has been arrested are not only non-bailable, but so heinous that the ground of bail by the competent criminal court, is in normal course an exception and its refusal, a rule. As already noticed, this is all the more glaring when the offences for which he has been arrested are not only non-bailable, but so heinous that the ground of bail by the competent criminal court, is in normal course an exception and its refusal, a rule. Also, when in such offences the relevant criminal and penal laws prohibit the competent criminal court to order the grant of bail, except after proper notice to the State and only after affording adequate opportunity of hearing to the prosecution. In such cases, when accused therefore, does not even apply to the competent criminal court for grant of bail, assigning the reason of the apprehension in the mind of detaining authority about his being released on bail is wholly impermissible under the scheme of the Article 22 (5) of the Constitution of India and cannot be countenanced by any court as being a justified and plausible ground for detaining such a person under the preventive detention law. Such an order of detention can surely be assailed to be suffering from gross non-application of mind, or at least a grossly improper application of mind. No court in such a situation, therefore, can possibly uphold such a detention order or approve the act of such a detaining authority. For the foregoing reasons, therefore, I have no hesitation in allowing this petition, the petition accordingly is allowed and the impugned detention order is hereby quashed and set-aside. A writ of mandamus is also issued against the respondents directing them, as a consequence to release the petitioner from preventive detention, if he is not required in any other case. No order as to costs. 25. In the present case, I find complete non-application of mind on the part of the detaining authority in this behalf. The authority, as noticed above, has stated that there was likelihood of the release of the detenue on bail, while as the fact was that the detenue had not even moved a bail application. A copy of the order dated 4.1.2008, placed on file would show that the detenue was admitted to bail as the police had failed to file challan against him. 26. In view of the above discussion, on the ground of non-application of mind on the part of the detaining authority, I find the order of detention cannot stand. Order No. PSA-2007/17 dated 19.12.2007 is, therefore, quashed. 26. In view of the above discussion, on the ground of non-application of mind on the part of the detaining authority, I find the order of detention cannot stand. Order No. PSA-2007/17 dated 19.12.2007 is, therefore, quashed. Respondents are directed to release the detenue Gh. Mohd. Bhat S/o Jalal-ud-Din Bhat R/o Hyderpora, Budgam forthwith provided he is not required in any other case. 27. The record produced by Ld. Dy. AG is returned to him in the open Court.