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2008 DIGILAW 482 (JK)

Mohd. Sadiq v. State

2008-12-08

J.P.SINGH

body2008
1. Mohd. Sadiq has filed this petition through his wife Gulshada Begum seeking quashing of District Magistrate, Dodas Order No. PSA/DM/JC/06/03 dated 07.03.2007 directing his detention under Section 8 of the Jammu and Kashmir Public Safely Act, 1978. 2. Sh. N.P. Kotwal, appearing for the detenue submits that the District Magistrate had not supplied the detenu all the material that had been relied upon by him while contemplating issuance of the impugned order and this omission, according to the learned counsel had thus disabled the detenue to make effective representation to the Government against his detention. Petitioners detention, even otherwise, was illegal as there was no material on records on the basis whereof it may be said that there was either any likelihood of detenues release on bail in FIR No. 36/2006 registered at Police Station Gool or indulging in activities prejudicial to the security of the State when so released. Learned counsel further urges that the impugned order suffers from non-application of mind as the detention order, which appears to have been drawn on 07.02.2007 had been shown to have been issued on 07.03.2007 and executed much later in June, 2007. 3. Sh. V.K. Chopra, learned Additional Advocate General, has produced the detention records to justify petitioners detention. According to the learned State Counsel, as the activities of the petitioner were prejudicial to the security of State, so the detention of the petitioner was warranted. He says that petitioner has not been prejudiced in any manner whatsoever because of the non-supply of the material which had been relied upon by the District Magistrate and the petitioners detention did not suffer from any error of law. 4. I have considered the submissions of learned counsel for the parties and perused the records. 5. Petitioner was in police custody in FIR No. 36/2006 registered at Police Station Gool under Sections 307/121-A RPC and 7/27 Arms Act when the District Magistrate had directed his detention under Section 8 of the Jammu and Kashmir Public Safety Act on the ground that in the event of petitioners release on bail he would influence and terrorize the prosecution witnesses. 6. The detention order, therefore, appears to have been passed with a view to restrain the petitioner from influencing and terrorizing the prosecution witnesses in the event of his release on bail. 7. 6. The detention order, therefore, appears to have been passed with a view to restrain the petitioner from influencing and terrorizing the prosecution witnesses in the event of his release on bail. 7. Reason projected by the District Magistrate in detaining the petitioner in preventive custody is wholly unwarranted because law may not permit curtailment of ones liberty by the authorities under the Public Safety Act on grounds other than those which the legislature in its supreme wisdom has prescribed under Section 8 of the Public Safety Act. The ground on which the District Magistrate had proceeded to direct petitioners preventive detention being foreign to those mentioned in Section 8 of the Public Safety Act, therefore, renders petitioners detention unsustainable. 8. The records produced by learned State Counsel do not indicate the existence of any material on the basis whereof it may be said that there was likelihood of petitioners release on bail or otherwise from Police custody and when so released he was likely to indulge in activities prejudicial to the security of State. 8. The records produced by learned State Counsel do not indicate the existence of any material on the basis whereof it may be said that there was likelihood of petitioners release on bail or otherwise from Police custody and when so released he was likely to indulge in activities prejudicial to the security of State. In the absence of any such material, petitioners detention in preventive custody when he was already in Police custody cannot be justified in view of the law laid down by Honble Supreme Court of India in Surya Prakash Sharma v. State of U.P. reported as 1994 SCC (Cr) 1691 where while dealing with a similar question their lordships of Supreme Court of India had observed as follows:- "The question as to whether and in what circumstances an order for preventive 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, Burdwan," To eschew prolixity we refrain from dealing all those cases except that the Dharmendra Suganchand Chelawat v. Union of India wherein three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words: (SCC P. 754, para 21) "The decisions referred to above lead to the conclusion that an order for detention can he 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 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." 9. That apart, the petitioner does not appear to have been supplied the Police Dossier and the copies of the FIRs which had been relied upon by the learned District Magistrate while contemplating petitioners detention. This omission deprives the detenue of his right to make an effective representation against his detention. This is so because effective representation against detention may not be contemplated unless the detenue would know about the material which had entered the mind of the detaining authority while contemplating his detention. Supplying of only grounds of detention minus the copies of FIR and Police Dossier would thus violate petitioners statutory right of making representation against his detention under Section 13 of the Jammu and Kashmir Public Safety Act. 10. Perusal of the records further reveal that the District Magistrate had proceeded to direct petitioners detention on the basis of Police Dossier which appears to have been drawn on October 30, probably of the year 2006 because the Dossier contains only the date and month of its signing by Superintendent of Police Ramban and does not indicate the year in which it had been prepared by the Superintendent of Police. 11. Interpolation in the impugned detention order too indicates that the District Magistrate had exercised jurisdiction in detaining the petitioner in a mechanical fashion. No reasons are forthcoming from the records as to why there was delay of nearly three months in execution of the detention order when the petitioner was already in police custody. 12. All the aforementioned factors thus demonstrate that the District Magistrate had issued the impugned detention order without application of mind and in violation of the Constitutional and Statutory right of the petitioner depriving him of his right to make effective representation to the Government against his detention. The detention order impugned in this petition is, therefore, liable to be quashed being in violation of Article 22(5) of the Constitution of India reads with Section 13 of the Jammu and Kashmir Public Safety Act. Allowing this petition, District Magistrate, Dodas Order No. PSA/DM/JC/06/ 03 dated 07.03.2007, is, accordingly, quashed. A direction would thus issue to the respondents to set the petitioner to liberty forthwith, if not required in any other case. Detention records be returned to the State Counsel.