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2008 DIGILAW 517 (JK)

Alam Bhat v. State Of J. &K.

2008-12-27

MANSOOR AHMAD MIR

body2008
1. Farooq Ahmad Bhat, uncle of Masrat Alam Bhat S/O Abdul Majid Bhat R/O Zaindar Mohalla, Srinagar, detenue, has questioned the order No. DMS/PSA/20/2008 dated 9-9-2008 passed by respondent No. 2, detaining the detenue under the provisions of the Jammu and Kashmir Public Safety Act (for short the Act) on the grounds taken in the petition. 2. Respondents have filed counter and resisted the petition on the grounds taken therein. 3. Annexure-A-impugned order discloses that it came to be passed by the District Magistrate, Srinagar, on the basis of record submitted to him by Senior Superintendent of Police, Srinagar. It nowhere discloses that it came to be passed by the detaining authority on the basis of grounds of detention after due application of mind. 4. The activities attributed to the detenue, as given in the grounds of detention, relate to the years 1990, 1998, 1999, 2000, 2001, 2003, 2007 and 2008. It appears that previously also, the detenue came to be detained in terms of various detention orders which came to be quashed, pursuant to which, he stood released from time to time. The grounds of detention also disclose that the detenue came to be arrested again on 2-4-2007 in FIR No. 72/2007 and subsequently detained in terms of detention order which came to be quashed and released on 27-5-2008. On 25-6-2008, as alleged, he came to be arrested in FIR No. 42/2008 under sections 141, 149, 336, 436, 447-A, 427 Ranbir Penal Code (for short RPC) Police Station Rainawari, Srinagar. The grounds of detention further discloses that one more FIR No. 35/2008 under sections 148, 149, 38, 341, 336, 332, 427 RPC came to be registered against the detenue in Police Station Kralakhud and while in police custody in connection with the said cases, he came to be detained in terms of the impugned detention order. 5. Admittedly, detenue has not applied for bail. It is stated in the grounds of detention that he may get bail from the court. The question is whether it can be said to be a compelling reason for detaining the detenue, despite the fact that the detenue was in custody? The answer is in negative for the following reasons: 6. It is the duty of the detaining authority to spell out the compelling reasons for detaining the detenue in preventive detention, when he is in custody in substantive offence(s). The answer is in negative for the following reasons: 6. It is the duty of the detaining authority to spell out the compelling reasons for detaining the detenue in preventive detention, when he is in custody in substantive offence(s). When no such compelling ground(s) are spelled out, then the order of detention suffers from non-application of mind and is to be quashed. My this view is fortified by the judgments of the apex court reported in AIR 1995 SCW 1841 and (2001) 1 SCC 341. 7. It is worthwhile to mention here that as per grounds of detention, as discussed above, the detenue is allegedly involved besides other offences, in the commission of offence under section 436 RPC. The said offence is a special offence and is to be tried by a Special Judge and no bail can be granted unless the prosecution is heard. In terms of proviso to Section 173 Criminal Procedure Code (for short Code), the investigation is to be completed within two weeks. In terms of section 259-A of the Code, the trial is to be conducted by a Special Judge (Sessions Judge) to be appointed by the Government in consultation with the High Court for the purpose and the trial is to be commenced within one week from the date of presenting police report under section 173 of the Code. In terms of Section 497-B of the Code, no bail can be granted unless prosecution is given an opportunity to oppose the bail application and the court has to record satisfaction that there are reasonable grounds for believing that he is not guilty of such offence. 8. The aforesaid provision of law puts limitations on the jurisdiction of the court in the matter of grant of bail. It contains letters, which cannot be ignored by any court of law. 9. It appears that said provision of law has not been taken into consideration by the detaining authority while passing the impugned detention order and it can be safely said that it suffers from non-application of mind. My this view is fortified by the apex court judgment titled Sayed Abdul Ala Vs. Union of India & ors, 2007 AIR SCW 6974. It is apt to reproduce paras 19 and 20 of the said judgment hereunder:- .. 19. The statute, thus, puts limitation on the jurisdiction of the court in the matter of grant of bail. My this view is fortified by the apex court judgment titled Sayed Abdul Ala Vs. Union of India & ors, 2007 AIR SCW 6974. It is apt to reproduce paras 19 and 20 of the said judgment hereunder:- .. 19. The statute, thus, puts limitation on the jurisdiction of the court in the matter of grant of bail. They cannot be ignored by any Court of Law. Several decisions of this Court and of High Court operate in the field. 20. Proper application of mind on the part of the detaining authority must, therefore, be borne out from the order of detention. In cases where the detenue is in custody, the detaining authority not only should be aware of the said fact but there should be some material on record to justify that he may be released on bail having regard to the restriction imposed on the power of the Court as it may not arrive at the conclusion that there existed reasonable grounds for believing that he was not guilty of such offence and that the detenue could not indulge in similar activity, if set at liberty." 10. While going through the grounds of detention, it appears that the detention order was already issued before framing the grounds of detection. It is apt to reproduce last 03 lines of the grounds of detention hereunder:- ............. Under such compelling circumstances, it has become imperative to detain you under Jammu and Kashmir Public Safety Act, 1978 for which a separate order has been issued. 11. In terms of mandate of Public Safety Act, it is mandatory to examine the material, consider the same and to prepare the grounds of detention in order to record satisfaction for detaining the detenue and there-after detention order is to be issued. In the instant case, perusal of the grounds of detention reveal that the order of detention was already issued and there-after grounds of detention came to be framed. 12. The words `separate order has been issued means and connotes that `order of detention was already issued. It is recorded in past tense. 13. Word `issued used means that something has been done already. The words is to be issued is not used in the grounds of detention. 12. The words `separate order has been issued means and connotes that `order of detention was already issued. It is recorded in past tense. 13. Word `issued used means that something has been done already. The words is to be issued is not used in the grounds of detention. Had the detaining authority used the words is to be issued, it could have been safely held and said that after recording grounds of detention, the impugned order was to be issued, but what it connotes is that the order has already been issued. Thus it can be safely said that the detention order came to be passed without application of mind. This court in a case titled Abdul Rahim Rather Vs. State of J&K, 1996 SLJ 202 has held that if detention order is made and recorded before grounds of detention are framed, it can safely be said that the order has been passed mechanically and without application of mind. 14. The apex court in a case titled Naresh Chandra Gnguli Vs. The State of West Bengal, AIR 1959 SC 1335 has held that grounds of detention must be in existence at the time when order of detention is made. 15. In the given circumstances of the case, it can be safely held that the detention order came to be made when the grounds of detention were not in existence. 16. It is specifically pleaded in the petition that the respondents have not furnished relevant documents which are made basis for passing the detention order. Learned counsel for the respondents stated that the facts /allegations relating to the year 1990 till making of grounds of detention were just made for passing reference and are not basis for making fresh detention order and frankly conceded that copies of the said documents relating to the said facts have not been furnished the detenue. While going through the record, one comes to an inescapable conclusion that all the facts and grounds came to be made basis for making the detention order. 17. While going through the record, it appears that serving officer Mohammad Yasin had made a report, Photostat copy of which is on the record, that the grounds of detention consisting of 03 leaves have been read over and explained to the detenue. 17. While going through the record, it appears that serving officer Mohammad Yasin had made a report, Photostat copy of which is on the record, that the grounds of detention consisting of 03 leaves have been read over and explained to the detenue. It is nowhere stated that the copies of grounds of detention, detention order and other material came to be issued or served to the detenue. 18. Nothing is forthcoming from record as to whether copies of FIRs and other documents viz. seizure memo, statement recorded under section 161 Cr.P.C. came to be issued or served to the detenue. It is the duty of the detaining authority and of the respondents to furnish all documents relied upon and lo inform the detenue that he has a right of making a representation. As discussed hereinabove, the detenue has not been furnish all the material, so as to enable him to make an effective representation against his detention. When a person is in preventive detention or in police custody, he has no access to his own documents which are in his possession, though at his home or at his office. How can it be said that he could have made an effective representation in the given circumstances of the case. Right of personal liberty and freedom came to be curtailed in terms of the impugned order, without following mandate of law. When such is the situation, it can safely be said that impugned detention order is bad arid merits to be quashed. Recently apex court in a case titled Union of India Vs. Ranu Bhandari, 2008 Cri. LJ. 4567 has held that non-supply of all the material both for and against the detenue is against the mandate of law and violates all the safeguards provided by the constitution read with provisions of the Act. 19. As per record, the detention order came to be executed on 11-9-2008, but in the report of the serving officer, it is disclosed that it came to be executed on 10-9-2008 at 2 p.m., which one is correct. This is also suggestive of the fact that all the safeguards enshrined in the Constitution and the Act came to be observed in breach. 20. The allegations contained in the grounds of detention are vague inasmuch as the particulars of the meetings conducted with so many persons and also other particulars are lacking. This is also suggestive of the fact that all the safeguards enshrined in the Constitution and the Act came to be observed in breach. 20. The allegations contained in the grounds of detention are vague inasmuch as the particulars of the meetings conducted with so many persons and also other particulars are lacking. Only on this ground, the detention order merits to he quashed. I am fortified in any view by a judgment of the apex court reported as Dhananjoy Das Vs. District Magistrate, AIR 1982 SC 1315. 21. Having glance over above discussions, I am of the considered view that all the safeguards provided by the constitution of India read with provisions of the Act have been observed in breach. Viewing thus, this petition is allowed and the impugned order of detention bearing No. DMS/PSA/20/2008 dated 09-09-2008 issued by respondent No. 2 is quashed and the respondents are directed to release the detenue from preventive custody, if not required in any other case.