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2009 DIGILAW 459 (JK)

Farooq Sheikh v. State

2009-09-16

J.P.SINGH

body2009
Cr.M.P. no.94/2009: 1. Exercising power under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, hereinafter to be referred as, "the Act", for short, District Magistrate, Budgam directed petitioner-Farooq Sheikhs detention vide his order no.DMB/PSA/24 of 2009 dated 10.08.2009 for a period to be specified by the Government. 2. The Detention Order does not, however, appears to have been executed. 3. Petitioner has filed this Petition seeking quashing of the District Magistrates order, besides command to the respondents not to detain the petitioner in preventive detention. Cr.M.P. no.94/2009 seeking stay of the Detention Order, too, has been filed along with the Petition. 4. Petitioners learned counsel, inter alia, urges that the Detention Order having not been approved by the Government as required under Section 8(4) of the Act within the statutory period of twelve days, the petitioner cannot, in law, be detained on the basis of an order which has been rendered non-est, he, therefore, seeks stay of the operation of the detention order impugned in the Petition, pending its disposal on merits. 5. Opting not to file objections to the C.M.P. and placing on records Home Departments communication no. Home/PB-V/315/2009 dated 14.09.2009, indicating that the competent Authority has not approved the action of District Magistrate, Budgam, learned State counsel, opposing the petitioners prayer for stay of the Detention Order, submitted that unless the petitioner had surrendered to custody in compliance to the District Magistrates order, he would neither be entitled to maintain the Petition nor seek stay of the execution of the impugned Detention Order, additionally because the provisions of Section 8(4) were required to be considered in the light of the provisions of Section-10 of the Act, and in this view of the matter, period of twelve days prescribed under Section 8(4) of the Act would commence from the date of actual detention of the petitioner and not from the date of the issue of the Detention Order, as projected by the petitioners counsel. 6. I have considered the submissions of learned counsel for the parties and gone through the judgments cited at the Bar by the petitioners learned counsel to support his submission. 7. 6. I have considered the submissions of learned counsel for the parties and gone through the judgments cited at the Bar by the petitioners learned counsel to support his submission. 7. In order to determine the question, as to whether or not the petitioner has succeeded in making out a case for stay of the operation of the impugned Detention Order, regard needs to be had to the provisions of Sections 8 and 10 of the Act which were referred to by the learned counsel for the parties to support their respective submissions, Section 8 and 10 of the Act reads thus:- "8. Detention of certain persons (1) The Government may-- (a) If satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-- (i) The security of the State or the maintenance of the public order; or (ii) omitted]; (a-1) if satisfied with respect to any person that with a view to preventing him from-- (i) Smuggling (timber or liquor); or (ii) abetting the smuggling of (timber or liquor); or (iii) engaging in transporting or concealing or keeping smuggled timber, or (iv) dealing the smuggled timber otherwise than by engaging in transporting or concealing or keeping in smuggled (timber or liquor); or (v) harbouring persons engaged in smuggling of [timber or liquor] or abetting the smuggling of [timber or liquor]; or (b) if satisfied with respect of such person who is- (i) a foreigner within the meaning of the Foreigners Act,] (ii) a person residing in the area of the Stateunder the occupation of Pakistan, that with a view to regulating his continued presence in the State or with a view to making arrangements for his expulsion from the state, it is necessary so to do, make an order directing that such person be detained. (2) Any of the following officers, namely:-- (i) Divisional Commissioners, (ii) District Magistrate, May, if satisfied as provided in sub-clauses (i) and (ii) of clause [(a) or (a-1)] of sub-section (1), exercise the powers conferred by the said subsection. (3) For the purposes of sub-section (1), [9(a) omitted. (2) Any of the following officers, namely:-- (i) Divisional Commissioners, (ii) District Magistrate, May, if satisfied as provided in sub-clauses (i) and (ii) of clause [(a) or (a-1)] of sub-section (1), exercise the powers conferred by the said subsection. (3) For the purposes of sub-section (1), [9(a) omitted. (b) "acting in any manner prejudicial to the maintenance of public order" means-- (i) promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region; (ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order; (iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order; (iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order; [(c)] "smuggling in relation to timber or liquor means possessing or carrying of illicit timber or liquor and includes any act which will render the timber or liquor liable to confiscation under the Jammu and Kashmir Forest Act, Samvat 1987 or under the Jammu and Kashmir Excise Act, 1958, as the case may be;] [(d)] "timber" means timber of Fir, Kail, Chir or Deodar tree whether in logs or cut up in pieces but does not include firewood;] [(e)] "liquor" includes all alcoholic beverages including beer]. (4) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government." 10. Power to regulate place and conditions of detention Any person in respect of whom a detention order has been made under section 8 shall be liable-- (a) to be detained in such place and under such conditions including conditions as to the maintenance of discipline as the Government may, by general or special order, specify, and (b) to be removed from one place of detention to another place of detention [xxx] by order of the Government: [Provided that the detenues who are permanent residents of the State shall not be lodged in jails outside the State:]" 8. Section 10 of the Act regulates the place and condition of detention and would not thus be of any help to deal with the question canvassed at the Bar. Section 8 of the Act, however, indicates that the Government has been vested with the absolute power to keep persons in preventive detention, in case, it was satisfied that the conditions requisite appearing in one or the other sub-Sections of Section 8 of the Act were satisfied. 8. Divisional Commissioners and District Magistrates, too, have been vested with the same powers as that of the Government; but with a restriction as indicated in Section 8(4) of the Act, in terms whereof, while making an order under Section 8 of the Act, these officers are required to forthwith report the fact of detention to the Government together with the grounds on which the Detention Order had been made and such other particulars which in the opinion of the officers may have bearing on the matter. The life of the order passed by these officers, in terms of Section 8(4) of the Act is, however, twelve days and unless approved by the Government, the order would cease to have any effect. 10. The expression "any order" and "after making thereof appearing in Section 8(4) of the Act clearly demonstrate the intention of the Legislature to make the Detention Order issued by these officers operational only for a period of twelve days and not beyond that, unless, however, it was approved by the Government. 11. 10. The expression "any order" and "after making thereof appearing in Section 8(4) of the Act clearly demonstrate the intention of the Legislature to make the Detention Order issued by these officers operational only for a period of twelve days and not beyond that, unless, however, it was approved by the Government. 11. Learned State counsels plea that the period of twelve days would commence not from the date of issuance of the orders by these officers but from the date of actual detention of the person sought to be detained, does not appears to be, prima facie, tenable in view of the explicit language employed in the Section, which may not admit of any other interpretation than, that the twelve days would commence from the date of the making of the order and not from the date of the detention of the person concerned. 12. Respondents counsels submission that the petitioners writ petition was not maintainable without his first surrendering to custody does not appears to be tenable in view of the law laid down in Deepak Bajaj v. State of Maharashtra reported as AIR 2009 SC 628 where while dealing with the similar question, their lordships of Honble Supreme Court of India held as follows:- "24. If a person against whom a preventive detention order has been passed comes to Court at the pre-execution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Article 21 of the Constitution and should not be likely transgressed. Hence in our opinion Smt. Alka Subash Gadias case (supra) cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre-execution stage are exhaustive." 13. In view of the above discussion, I am, therefore, satisfied that the petitioner has succeeded in making out a case for stay of the impugned Detention Order, pending consideration of the petition on merits. 14. In view of the above discussion, I am, therefore, satisfied that the petitioner has succeeded in making out a case for stay of the impugned Detention Order, pending consideration of the petition on merits. 14. Thus satisfied, prima facie, that the District Magistrates order has been rendered non-est because of its not having been approved by the Government, I think it appropriate to stay the operation of the District Magistrates order no.DMB/PSA/24 of 2009 dated 10.08.2009, until final disposal of the petitioners Petition. 15. It is, therefore, directed that the District Magistrates order no.DMB/PSA/24 of 2009 dated 10.08.2009 shall remain stayed, until further orders, during the pendency of the Petition. 16. Registry to register the Petition as Writ Petition, and list it for consideration in the second week of October, 2009. Respondents may, in the meanwhile, file their response to the writ petition and produce the Detention records. Cr.M.P.No.94/2009 is, accordingly disposed of.