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2008 DIGILAW 42 (JK)

Sikander-e-Azam v. State Of J. &K.

2008-02-15

VIRENDER SINGH

body2008
1. Through the instant petition, Sikander-e-Azam (hereinafter to be referred to as `the detenue) has questioned the detention order (Annexure-A) dated 28.7.2006 passed by District Magistrate, Jammu (respondent No.2). The main attack launched is that it reflects non-application of mind on the face of it and that flaw by itself is sufficient to quash it. 2. Mr. Mughal asserts that in the grounds of detention, which according to the stand of the State, were supplied to the detenue (although vehemently denied), the apprehension projected by respondent No.2 was that although at that moment, the detenue was in custody in FIR No. 5/2006 registered at Police Station, Satwari, but in the event of his release on bail or otherwise, he was likely to indulge in activities prejudicial to the security of the State. This is, in fact, factually incorrect. This indicates that either the true facts were not supplied to respondent No.2 or he has not applied his mind while passing the impugned order of detention. 3. Dwelling upon his arguments, Mr. Mughal then submits that when this case was taken up on 9.10.2007 for hearing, he had joined issue on this vital flaw to which Mr. Salathia sought an adjournment for filing an affidavit of the concerned police official. One Arvinder Kotwal, SHO Police Station Satwari, Jammu, has now tendered his affidavit, which, on facts runs contrary to what is said in grounds of detention. Respondent No.2 is, otherwise, not clear on this aspect in his objections filed to the main petition. According to the learned counsel, co-joint reading of grounds of detention, the objections filed by respondent No.2 and the affidavit of SHO concerned, would indicate non-application of mind by the detaining authority. Therefore, the detention order deserves to be quashed. 4. According to Mr. Mughal, there is yet another defect in the detention order, as it is silent about the period of detention of the detenue. According to the learned counsel, the total period of detention can go up to 24 months, but it is incumbent upon the detaining authority to specify the exact period of detention to the detenue. He cannot be kept in dark on this aspect, as it involves his liberty and, therefore, non-mentioning of the detention period again amounts to non-application of mind and for this lacuna also, the detention order calls for quashing. He cannot be kept in dark on this aspect, as it involves his liberty and, therefore, non-mentioning of the detention period again amounts to non-application of mind and for this lacuna also, the detention order calls for quashing. In support of his contention, he has relied upon a judgment of this Court rendered in Mohammad Younis Bhat v. State and others 1993 SLJ 38. 5. Mr. Mughal has pointed out certain other weaknesses in the case in hand, but primarily strikes home on the aforesaid flaws. 6. Arguments are refuted by Mr. Salathia. However, he has not been able to controvert the factual position as projected by Mr. Mughal. 7. I do not feel the necessity of entering into a detailed discussion on all the flaws pointed out in the petition and projected by Mr. Mughal during the course of arguments, as in my considered view, the impugned detention order, on the face of it, sans application of mind. 8. The operative para of grounds of detention (allegedly supplied to the detenue) reads thus: "In the backdrop of above consideration as well your contacts, association and anti-national activities, it is quite evident that you are a sympathizer and over ground worker of LeT militant outfit whose aim is to create a sense of insecurity among the peace loving people of the State. You were arrested in case FIR No. 05/2006 Police Station, Satwari. Although at the moment, you are in custody, but in the event of your release even on bail or otherwise; you are likely to indulge in similar activities in future also which will pose a serious threat to the security of the State....." 9. The affidavit filed by SHO Police Station, Satwari, with regard to FIR No. 5/2006 registered against the alleged detenue and his co-accused under Sections 120B, 121, 122, 123 RPC 4/5 ESA, reads, thus: "That the petitioner was arrested on 20.6.2006 in FIR No. 05/2006 P/S Satwari under Section 120B, 121, 122, 123 RPC 4/5 ESA along with other accused Kabir Hussain S/o Raj Mohd. R/o Mendhar. The petitioner was sent to JIG for interrogation on 22.6.2006 and sent back to P/S Satwari on 4.7.2006. As there was deficiency of evidence against the petitioner, as such, he was given the benefit under Section 169 Cr. P.C and released on 4.7.2006 after his executing a bond along with surety. R/o Mendhar. The petitioner was sent to JIG for interrogation on 22.6.2006 and sent back to P/S Satwari on 4.7.2006. As there was deficiency of evidence against the petitioner, as such, he was given the benefit under Section 169 Cr. P.C and released on 4.7.2006 after his executing a bond along with surety. That on 28.7.2006 the then SHO P/S Satwari in compliance to the order No.l3/PSA of 2006 dated 28.7.2006 issued by District Magistrate, Jammu arrested the petitioner from Ban Talab area and executed the detention warrants on the same day....." 10. Admitted position is that in the reply/objections filed by respondent No.2, he is not specific about the proceedings with regard to aforesaid FIR. If one goes through the grounds of detention, the main fact which weighed- in the mind of the District Magistrate was that the detenue was arrested in case F.I.R. No.05/2006 and, according to him, at that very time, he was in custody in that case. The apprehension expressed in the grounds of detention is that in the event of his release on bail or otherwise, he was likely to indulge in anti national activities. This is factually incorrect for the reason that the detenue was already released on bail, as is clear from the aforesaid affidavit of SHO of Police Station, Satwari, and his place of arrest is also different. In the aforesaid backdrop, I do not feel hesitant in observing that either true facts were not brought to the notice of District Magistrate (Detaining Authority) or he has not bothered to delve deep into it. Taking it from any angle, this talks of non-application of mind. Detention order is not to be passed just in a mechanical manner on asking. After all, it infringes the liberty of an individual guaranteed by Constitution of India. This cannot be taken away by a casual approach like in this case. Every day is a heavy day in the jail and, therefore, the detaining authority is supposed to adopt a very cautious approach while passing the detention order. It has its far reaching effect. The Court would not affix the seal on it. In the present case, the petitioner is in custody for the last 19 months on the basis of an order, which cannot stand the test of judicial scrutiny at all. 11. I also find substance in the other submission advanced by Mr. It has its far reaching effect. The Court would not affix the seal on it. In the present case, the petitioner is in custody for the last 19 months on the basis of an order, which cannot stand the test of judicial scrutiny at all. 11. I also find substance in the other submission advanced by Mr. Mughal with regard to the non-mentioning of detention period in the impugned order of detention. In my view, it has the same effect and reflects non-application of mind. However, I do not feel the necessity of delving deep into this aspect, as the vital weakness discussed hereinabove in detail, in my considered view, touches the core and is enough to quash the detention order. 12. Resultantly, the instant petition is allowed. Impugned order of detention No. DMJ/PSA/2006-07/675-78 dated 28.7.2006 passed by District Magistrate, Jammu, is hereby quashed. Person of Sikander-e-Azam S/o Late Mohd. Zafar R/o Village Gursai, Tehsil Mendhar, District Poonch, shall be released forthwith, if not required in any other case. Order be communicated to the quarter(s) concerned without any delay. Detention record has been returned to Mr. B. S. Salathia.