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2009 DIGILAW 360 (JK)

Jamali Khan v. State

2009-07-27

J.P.SINGH

body2009
1. District Magistrate Udhampurs order no. PSA-2007/19 of December 19, 2007, was quashed by this Court on September 16, 2008, allowing petitioners OWP no.143/2008, and commanding the respondents to release the detenue forthwith from the preventive custody. 2. The petitioner-detenue was not, however, released. He was re-detained pursuant to Detention order no. PSA-2008/20, which was questioned by his HCP no.38/2008, in this Court. 3. It was during the pendency of HCP no.38/2008 in the Court, that the Government of Jammu and Kashmir issued yet another order no. 196-Home/PBV of 2009 for his detention. 4. Qaisar Ali Khan, the petitioners brother-in-law, has filed this petition, seeking Jamali Khans release and quashing of the Detention order. 5. Denying the allegations appearing in the Detention order as false, fabricated and concocted, and pleading innocence in regard thereto, the petitioner says that his detention is un-constitutional, arbitrary and the result of non-application of mind, besides being in violation of the provisions of the Jammu and Kashmir Public Safety Act, 1978, hereinafter to be referred as `the Act. 6. Referring to the report made by Dy. S.P., Joint Interrogation Centre Jammu, releasing the detenue vide DD no.17 dated 6.10.2008 in FIR no.03/08 registered under Sections 18 ULA, 120-5, 121 RPC at Police Station, JIC Jammu, giving benefit of Section 169 of Cr. P.C., it is urged that the provisions of the Jammu and Kashmir Public Safety Act, have been misused by the respondents to deprive the detenue of his Fundamental right to Life and Personal Liberty. 7. Respondents have supported the detention and the counter-affidavit filed by the Deputy Secretary to Government Home Department indicates that the petitioner-detenue, an employee of the Mumbay Mercantile Co-operative Bank was associated with Hizbul Mujahideen outfit, an outlawed terrorist organization, had been engaged by one Mr. G.M. Bhat, a Hawala Courier, messenger, facilitator, mobilizer and dispatch rider, for handing over to Syed Ali Shah Gilani, the Chairman of Tehreek-e-Hurriyat Srinagar, the Hawala money. On his arrest by the police, he was found carrying Rs.46,89,500/- along with a Logo of Hizbul Mujahideen-outfit. Cash worth Rs.2.5 lacs, one Walkman set and a Mobile phone was recovered from his wife, who too was traveling with him in a Tata Sumo vehicle. 8. On his arrest by the police, he was found carrying Rs.46,89,500/- along with a Logo of Hizbul Mujahideen-outfit. Cash worth Rs.2.5 lacs, one Walkman set and a Mobile phone was recovered from his wife, who too was traveling with him in a Tata Sumo vehicle. 8. Detailing petitioners earlier Hawala activities, it is stated that he was detained vide Government order of 04.02.2009 to prevent him from indulging in the activities prejudicial to the security of State. He is stated to have been supplied the grounds of detention, explaining the contents thereof, in the language he understood, and informed of his right to make representation to the Government against his detention. 9. According to the Deputy Secretary, the detenue was directly involved in the transmission of Hawala money to the outlawed organizations whereby the security of the Country/State has been prejudiced, as such, he, (the Deputy Secretary), had passed the detention order after going through the records made available to him by the concerned police, after satisfying himself that there were grounds existing for his detention. 10. I have heard learned counsel for the parties and perused the Detention records made available by the learned State counsel, Mr. P.C. Sharma, Additional Advocate General. 11. Perusal of the Detention records indicates that the petitioners second Detention order, issued by the District Magistrate, Udhampur, was withdrawn because it had not been approved by the Government within the time prescribed under the Act. 12. The Government order no. 196-Home/PB-V of 2009 dated 04.02.2009, the third Detention order, which is the subject matter of this petition, is indicated to have been issued by the Government, proceeding on the premise that the petitioners first Detention order had been quashed by the Court on technical grounds of not providing the detenue, the material and the documents relied upon by the District Magistrate, which had prejudiced him in making effective representation to the Government against the detention, as also on the ground of the District Magistrates non-application of mind in omitting to spell out the reasons, on the basis whereof he had recorded the satisfaction that the detenue, if released on bail, was likely to indulge in the activities prejudicial to the security of State. 13. 13. The grounds of detention, in support of the Detention order, in question, are those which had appeared in the petitioners first Detention order, barring, however, the additional grounds which had appeared in the petitioners second Detention order as well, which, for facility of reference, are reproduced hereunder: - "Whereas, I have now carefully examined the material presented before me and, after having applied my mind to the gist of unlawful and illegal activities mentioned hereinabove, have come to the conclusion that (a): the logo and seals of Hizbul Mujahideen found in your possession at the time of arrest are conclusive evidence that the hawala transaction being carried out by you were directly serving to fund, fuel, aid and abet the terrorist activities of the banned Hizbul Mujahideen outfit responsible for a large number of murders and other heinous crimes and waging war against the Government, besides the activities of Tehreek-I-Hurriyat; (b) In your nearly a decade of involvement in Hawala transactions at the behest of G.M. Bhat of Srinagar, and visits to several countries like Pakistan, United Kingdom, UAE, Saudi Arabia, Sri Lanka and Maldives on more than 20 different occasions, you have established a network of contacts for transfer of huge amounts of Hawala money to India from sources outside the country; (c) Your release from detention under PSA and consequently remaining at large is definitely fraught with the danger of your again becoming active by reactivating the hawala links and associating with the terrorist organizations to boost their monitory sources in order to unleash terror amongst the people of State and Country and wage war against the Government by financing insurgency in the State of J&K and other parts of the country with Hawala money. This likelihood is more so in view of the continued indulgence in conspiracy with other inmates and outsiders who used to visit in the Jail to continue ongoing movement of so called Jehal even while lodged in Kot Bhalwal, Jail. (d) In order to discourage you from again becoming actively associated with the Hawala money transactions and various terrorist organizations, therefore, it has become incumbent and necessary to re-detain you to prevent you from indulging in subversive and anti-national activities. Your remaining at large will pose a great threat to public safety, public order and to the security of the State. Your remaining at large will pose a great threat to public safety, public order and to the security of the State. The ordinary law of the land has not deterred you to desist from your nefarious designs. Whereas, case FIR, No: 252/07 U/S 17/18/21/24/40 of Un-Lawful Activities (Prevention) Amendment Act 2004 of P/S Udhampur in which you were arrested has been sent to the higher authorities for accord of sanction which being procedural is likely to cause delay in its final presentation before the Trial Court (Designated Court) and as such your remaining at large during this intervening period will be a threat to public safety, public order and the security of State of J&K and the rest of the country. Now, therefore, in view of the circumstances mentioned above, I am satisfied that your activities are anti-national, subversive and highly prejudicial to the public order, public safety and the security of the State. Therefore, you are detained in Kot-Bhalwal Jail, Jammu for a period of two years under the provisions of Section 8 of Public Safety Act, 1978. Sd/- Deputy Secretary to Government Home Department, J&K" 14. During the course of the hearing of the petition, after going through the records, learned State counsel, had fairly conceded, that the material relied upon for petitioners detention, had not been supplied to him and all that had been supplied to him, was the grounds of detention and nothing beyond that. 15. It appears that the Government of Jammu and Kashmir and its Advisors, have misconstrued the decision of this Court to have quashed the petitioners detention, only on the technical grounds viz. 15. It appears that the Government of Jammu and Kashmir and its Advisors, have misconstrued the decision of this Court to have quashed the petitioners detention, only on the technical grounds viz. (1) that the petitioner had been deprived of his right to make representation against the detention for Detaining Authoritys omission to supply him the material relied upon for detaining him, and (2) that the Detaining Authority had not spelled out in the grounds of detention, that the detenue, if released on bail, was likely to indulge in the activities prejudicial to the security of State, although there was no occasion for its so doing, in view of the categoric finding recorded by the Court that there was no material on the records of the District Magistrate, on the basis whereof, the satisfaction recorded by him, that there was likelihood that the detenue may be released on bail in the near future, and while being at large he would continue his subversive and anti-national activities, may be justified. 16. The satisfaction recorded by the District magistrate was, accordingly, held by the Court to be arbitrary, while disposing of the petitioners OWP no. 143/2008. The findings recorded by the Court, in this respect, are reproduced hereunder: - "That apart, the satisfaction recorded by the learned District Magistrate that there is likelihood that if the petitioner was released on bail in near future, he would continue his subversive and anti-national activities, is not based on any evidence/material, barring is similar statement appearing in the police dossier. The dossier too does not indicate the basis, or the material, such as reports etc. of any agency/ies about petitioners likelihood of indulging in subversive and anti-national activities in the event of his being released on bail in FIR 252/2007. Preventive detention of a person who is already in police custody is, no doubt, permissible under Section 8 of the Act yet while directing preventive detention in such cases, the detaining authority is required to spell out his satisfaction, that the detenu, if released on bail, was likely to indulge in activities prejudicial to the security of the State or maintenance of public order or the like warranting preventive detention. Such satisfaction, however, needs to be based on some material. In other words, existence of material for recording such satisfaction is the sine-quo-non for detaining a person who is already in custody, in preventive detention. Such satisfaction, however, needs to be based on some material. In other words, existence of material for recording such satisfaction is the sine-quo-non for detaining a person who is already in custody, in preventive detention. The records produced by the respondents, however, do not contain any such material on the basis whereof the satisfaction recorded by the District Magistrate may be justified. Satisfaction recorded by the learned District Magistrate is, therefore, arbitrary." 17. In view of the above findings of the Court that there was no material with the District Magistrate for recording satisfaction that the petitioner was likely to indulge in subversive and anti-national activities, the provisions of Section 19(2) of the Act, could not, in law, be invoked, for, the petitioners detention had not been quashed only on the technical grounds. 18. In this view of the matter, the petitioners detention may be justified only if there was any fresh sustainable ground and material in support thereof. 19. Perusal of the grounds of detention appearing in the detention order in question reveals that the petitioners detention has been ordered on a fresh ground which for facility of reference is reproduced hereunder: - "(c) Your release from detention under PSA and consequently remaining at large is definitely fraught with the danger of your again becoming active by reactivating the hawala links and associating with the terrorist organizations to boost their monitory sources in order to unleash terror amongst the people of State and Country and wage war against the Government by financing insurgency in the State of J&K and other parts of the country with Hawala money. This likelihood is more so in view of the continued indulgence in conspiracy with other inmates and outsiders who used to visit in the Jail to continue ongoing movement of so called Jehad even while lodged in Kot Bhalwal, Jail." 20. The sole question which needs consideration in the petition is as to whether or not the petitioners detention is sustainable on the aforementioned ground and justified on the material available on the records. 21. Perusal of the later part of the aforementioned ground on which the petitioners detention is founded demonstrates that no date(s), month(s) or the order, when the petitioner-detenue is stated to have indulged in conspiracy with other inmates and outsiders to continue ongoing movement of Jehad, even while lodged in Kot Bhalwal, Jail, has been indicated. 21. Perusal of the later part of the aforementioned ground on which the petitioners detention is founded demonstrates that no date(s), month(s) or the order, when the petitioner-detenue is stated to have indulged in conspiracy with other inmates and outsiders to continue ongoing movement of Jehad, even while lodged in Kot Bhalwal, Jail, has been indicated. There is not even a whisper as to how many times, the petitioner-detenue is stated to have indulged in the aforementioned conspiracy. The ground afore-mentioned, cannot thus be construed but as vague, uncertain and in-definite. 22. That apart, the records produced by the State counsel do not contain any material of any type whatsoever, on the basis whereof, it may even be inferred, that the detenue was likely to indulge in any such activities as have been attributed to him in the grounds of detention. There is no material worth the name on the records, on the basis whereof, it may be said that during the period of petitioners detention with the respondents, he had indulged in any such type of conspiracy as has been attributed to him by the Deputy Secretary to Government, in the grounds of detention. 23. The fresh ground of detention, appears to have been coined by the Deputy Secretary on the basis of an imagination, because even the Police Dossier of the Senior Superintendent of Police Udhampur, available on the records, on the basis whereof, the Secretary is stated to have drawn the grounds of detention, do not even remotely hint at detenues indulging in such activities as attributed to him in the ground of Detention. 24. The records of the respondents further demonstrate that the Government Order no. 196/Home/PBV of 2009 dated 04.02.2009 issued by the Principal Secretary to Government Home department, on behalf of Government of Jammu and Kashmir did not have the approval of the Government, or, for that matter of the Financial Commissioner (Home), who, according to the State counsel, stood delegated the powers to act as Government in respect of these cases under the Act, under the Business Rules. 25. Petitioners detention order vide aforementioned Government Order was, thus, without the sanction of law, until it appears to have been approved by the Financial Commissioner (Home) on March 23, 2009. 26. Mr. 25. Petitioners detention order vide aforementioned Government Order was, thus, without the sanction of law, until it appears to have been approved by the Financial Commissioner (Home) on March 23, 2009. 26. Mr. Subash Chibber, the Deputy Secretary to Government, Home Departments Affidavit is significantly silent as to whether or not the Government was satisfied that the grounds did exist for petitioners preventive detention. On the contrary, he is categoric in saying on Affidavit that it was he who had passed the Detention Order after going through the records made available to him by the concerned Police and after being satisfied that there were grounds existing for the petitioners Detention. Paragraph no. 2 of the Secretarys counter affidavit reads thus: - "That since the detenue is directly involved in the transmission of Hawala money to the outlawed organization as stated hereinabove, whereby the security of the country and the State has been prejudiced, as such, the deponent passed the Detention Order after going through the record made available to the deponent by the concerned police after and being satisfied that there are grounds existing for the detention of the detenue." 27. The Principal Secretary to Government, who has issued Government order No. 196/Home/PB-V of 2009 dated 04.02.2009 for petitioners Detention, has opted not to file his affidavit to support the petitioners Detention. 28. The material on the basis whereof the grounds of detention had been drawn have not been supplied to the detenue, as conceded by the learned State counsel. The omission of the respondents violates the detenues constitutional right to make effective representation to the Government against his detention, for, representation against detention, in terms of the Article 22(5) of the Constitution of India and Section 13 of the Act may not be contemplated unless material relied upon by the Detaining Authority was supplied to the detenue for making representation. 29. 29. There being no material on the records to justify the fresh ground, on which the petitioner has been detained, and the petitioners earlier Detention order issued by the District Magistrate Udhampur vide his Order No. PSA-2007/19 dated December 19, 2007 having been quashed not only on the technical grounds but also on the ground that there was no material on the records to indicate that, when released, the detenue would indulge in activities prejudicial to the security of State, thereby disabling the State Government to pass fresh order of Detention on the same grounds on which Detention Order No. PSA-2007/19 dated December 19, 2007 had been quashed, invoking the provisions of Section 19(2) of the Act, renders the petitioners Detention unsustainable, in that it violates the provisions of Article 14, 21, 22(5) of the Constitution of India and Sections 8 and 13 of the Act. For all what has been said above, the petitioners detention becomes unsustainable. 30. The power exercised by the State functionaries under the provisions of the Jammu and Kashmir Public Safety Act, 1978, to detain the petitioner in preventive custody, is unwary. The petitioner has been deprived of 5 his fundamental right to Personal liberty, for no good reasons and without there being any material for such deprivation. 31. Accordingly, quashing Government Order No.196/ Home/PB-V of 2009 dated 04.02.2009, the respondents are directed to release the petitioner forthwith from the preventive custody. 32. This petition is, therefore, allowed with costs quantified at Rs.5,000/-. 33. Records (File no. 2023/2008) Home/PB-5/2030/2008 be returned to the learned State counsel. 34. Detention Order No. PSA-2008/20 dated 06-10-2008 having been withdrawn by the Government, no orders are required to be passed in HCP No. 38/2008, which shall stand disposed of accordingly.