Research › Search › Judgment

J&K High Court · body

2008 DIGILAW 72 (JK)

Ab. Rashid Janda v. State

2008-03-19

MOHAMMAD YAQOOB MIR

body2008
1. Heard. Considered. 2. Detenu Abdul Rashid Janda has been detained pursuant to detention order No. DMS/PSA/18/2007 dated 16.07.2007. At the time of passing of the detention order detenu was already in custody in connection with case FIR 12/07 Police Station Khanyar, as well as in connection with FIR 32/07 for commission of offences punishable under Sections 302, 34/RPC and 7/27 Arms Act. 3. It is during custody, the detention order in question has been passed, when the detenu had neither applied for bail nor had been granted bail. Under such circumstances detaining authority had to record compelling reasons. It is strange when a person is arrested in connection with offence punishable under Section 302/RPC and 7/27 Arms Act, what is the need of passing the detention order. The object of detention order is to deter a person from indulging in activities which shall be prejudicial to the security of the State. But when a person is shown involved to have committed offence, which carries the punishment of death or life imprisonment. There cannot be any chance of release on bail unless material/evidence collected during the course of investigation is not faulty or unless during the course of trial testimony of the witnesses shall not be such so as to ensure reasonable belief of commissions of such offences. How the detaining authority has derived the satisfaction that detenu is likely to manage bail or get released on bail shows clear non application of mind. 4. It is quite relevant to quote para-8 of Judgment reported in AIR 1987 SC page 137: " We hold that there was clear non application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High court under appeal, quash the order of detention and direct that the petitioner be released forthwith. " 5. It is settled that a person while in custody can be ordered to be detained under Public Safety Act but for that, justified reasons are to be recorded. In the result we set aside the judgment of the Bombay High court under appeal, quash the order of detention and direct that the petitioner be released forthwith. " 5. It is settled that a person while in custody can be ordered to be detained under Public Safety Act but for that, justified reasons are to be recorded. It shall be quite relevant to quote para-5 of the Judgment delivered by Supreme court in Surya Prakash Sharma v. State of U.P reported 1994, SCC (Crl.) 1691: "The question as to whether and in what circumstances an order for preventing 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, Burdan," To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelwat v. Union of India wherein three Judge, Bench, after considering all the earlier relevant directions including Rameshwar Shaw answered the question in the following words: The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose must show that: (iv) the detaining authority was aware of the fact that the detenue was already in detention and (v) there was compelling reasons justifying such detention despite the fact that the detenu 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; the detenu is likely to be released from custody in the near future and (vi) that 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." 6. The second contention raised is that the detenu has not furnished material, forming base for order of detention, on perusal of record appears correct which amounts to infringement of his rights guaranteed under Article 22(5) of the constitution. The second contention raised is that the detenu has not furnished material, forming base for order of detention, on perusal of record appears correct which amounts to infringement of his rights guaranteed under Article 22(5) of the constitution. In my view, I am fortified by the Judgment reported as 1999(2) SCC page 413, wherein it has been held: "The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order. 7. For the reasons and the law stated above, order of detention is held to be unsustainable, so is quashed. Detenu namely Abdul Rashid Janda s/o Abdul Aziz Janda R/o Sheeshgari Mohalla Khanyar Srinagar, shall be released forthwith, unless required in any other case. Petition is disposed of accordingly. Detention record produced be returned to the appearing counsel for the respondents.