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2010 DIGILAW 130 (JK)

State Of J. &K. v. Shabir Ahmad Shah

2010-03-12

GH.HASNAIN MASSODI, HAKIM IMTIYAZ HUSSAIN

body2010
Per H. Imtiyaz Hussain, J. 1. This Letters Patent Appeal is directed against the order dated 26.2.2010 of the Learned Single Judge in CMP NO. 17/2010 in HCP NO. 40/2010. 2. Shabir Ahmed Shah S/o Ghulam Mohammad Shah R/o Anantnag, Kashmir (at present Sanat Nagar, Srinagar ) has been detained by the District Magistrate, Srinagar under section 8 of the Jammu & Kashmir Public Safety Act, 1978 (for short the Act) vide order No. DMS/PSA/73/2009 dated 9.2.2010. The District Magistrate has while directing preventive detention of the detenue ordered his lodgment in District Jail Kathua. 3. Detenues wife namely Dr. Bilquees has challenged the order of detention through a petition HCP No. 40/2010 and alongwith the petition has filed an application (CMP No. 17/2010) for shifting the detenue from District Jail, Kathua to Central Jail, Srinagar. The petitioner has stated that the detenue is suffering from various ailments and very recently has undergone a surgery and is under the treatment of the doctors. It is alleged that the lodgment of the detenue in District Jail, Kathua violates the legal, fundamental and constitutional right of the petitioner. 4. In its objections to the application the State (Appellant herein) stated that according to the administrative wisdom of the authority and keeping in view the various factors including the climatic condition in the valley, it was thought proper to lodge the detenue at Kathua. It was further stated that Central Jail, Srinagar is overcrowded besides hard-core militants of Lashkar-i-Taiba, Hizbul Mujahideen Jesh-e-Mohammad and other militants of other organizations are lodged there as such it has not been considered secure by the authorities to lodge the detenue at Central Jail, Srinagar. 5. The matter was heard by the learned Single Judge and while considering application for shifting of the detenue from Kathua to Central Jail, Srinagar the court found that the lodgment of the detenue at Kathua was in violation to the principles laid down by the Honble Apex Court in A.K. Roy v. Union of India AIR 1982 SC 710. The Court, therefore, found that keeping the detenue in District Jail, Kathua any more is unwarranted. The respondents were accordingly directed to shift the detenue to Central Jail, Srinagar. Superintendent Central, Jail, Srinagar was further directed to ensure that all medical facilities as shall be required for treating the ailments of the detenue are provided to him to the extent of required limits. The respondents were accordingly directed to shift the detenue to Central Jail, Srinagar. Superintendent Central, Jail, Srinagar was further directed to ensure that all medical facilities as shall be required for treating the ailments of the detenue are provided to him to the extent of required limits. 6. The State, feeling aggrieved of the order of learned Single Judge has challenged it through the medium of the present appeal on various grounds inter-alia that the order has been passed without providing sufficient opportunity to the State to defend lodgment of the detenue at District Jail, Kathua. It is also urged that the appellant after considering all the aspects directed lodgment of the detenue at District Jail, Kathua, which is part of J&K State, to ensure security of the detenue. It is further stated that the detenue is a staunch secessionist leader and the competent authority has found it appropriate to lodge him at Kathua as the jails in Kashmir are over crowded and the Central Jail, Srinagar has already passed the capacity, where 480 inmates are at present lodged against the capacity of only 370 inmates. Overcrowding apart security of the jail is a cause of disturbance in and around Central Jail, Srinagar and keeping in view the position of the detenue in the secessionist camp, the competent authority has found it convenient for the detenue as well as well for the administration to lodge him in District Jail, Kathua. 7. When this appeal was taken up for consideration Mr. M.A. Qayoom appeared for the respondent, who is on caveat. 8. On the consensus of the learned counsels the appeal was admitted to hearing and taken up for final disposal. 9. We have heard learned counsels. We have also considered the grounds taken in the petition/CMP and the objections filed by the State to the application for shifting of detenue to Srinagar. 10. Mr. Magray, Sr. AAG, learned counsel appearing for the appellant would submit that the impugned order has got effect of grafting principle relief at the threshhold of the case which has caused miscarriage of justice for the reason that the appellant has been condemned unheard. 10. Mr. Magray, Sr. AAG, learned counsel appearing for the appellant would submit that the impugned order has got effect of grafting principle relief at the threshhold of the case which has caused miscarriage of justice for the reason that the appellant has been condemned unheard. He has referred to the provisions of Section 10 of the Act and submits that the learned Single Judge while allowing the application has relied on A.K. Roys case while as the provisions of the Act which pertain to the lodgment of the detenue in the State of J&K was not the subject matter of discussion in the said case. Learned counsel submits that the power to decide lodgment of a detenue at any particular place vests in the competent authority and is always the prerogative of the detaining authority. The place of lodgment is administrative choice and it is for the competent authority only to direct lodgment of detenue, keeping in view the security and convenience. Mr. Magray has in support of his contentions relied on Geetinder Kour v. State of Punjab AIR 1985 SC 1409 and contended that the authority though referred to by the learned Single Judge has not been properly appreciated. It is stated that the Apex Court has in the said authority held that the law does not allow the courts to interfere in the decision of the competent authority regarding the lodgment of the detenue. 11. Per contra, Mr. Qayoom learned counsel for the respondent has strenuously relied on A.K. Roys case and submitted that the Apex Court has laid down clear guidelines required to be followed by the detaining authority while directing lodgment of the detenue, by providing that the normal rule has to be that the detenue is kept in detention in place which is within the environs of his/her ordinary place of residence. The purpose behind it is that it should be possible for the friends and relatives of the detenue to meet him and that the detenue can claim the advantage of facilities like having his own food. Learned counsel submits that though the detaining authority has the power to direct lodgment of the detenue at some other places but it should not be a far off place which would amount to subjecting the detenue to a punitive measure. The power should be exercised fairly and not arbitrarily. Learned counsel submits that though the detaining authority has the power to direct lodgment of the detenue at some other places but it should not be a far off place which would amount to subjecting the detenue to a punitive measure. The power should be exercised fairly and not arbitrarily. Learned counsel has in this behalf also relied on a Division Bench authority of this Court in State of J&K & Ors. v. Syed Asiya Andrabi in LPA No. 139/09 decided on 20.7.2009, an appeal against which stands dismissed by the Apex Court in SLP ( Crl) No. 5477-5478/2009. 12. Section 10 of the Act deals with the power to regulate place and conditions of detention. It also gives the Government powers to remove a detenue from one place of detention to another place of detention. The section reads as under:- 10. Power to regulate place and conditions of detention Any person in respect of whom a detention order has made under section 8 shall be liable- (a) to be detainee 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. 13. This section gives powers to the authorities to detain a detenue in such place and on such conditions as may be specified by the Government in a general or special order. As has been held by this Court in two reported cases reported as Suhail Ahmad Kataria v. State 2006 SLJ 534, cited by Mr. Magray and Imtiaz Ahmad Zargar v. State of J&K & Ors. 2003 (2) JKJ HC-76, power to regulate the place and the conditions of detention vests with the executive and any person who has been ordered to be detained under Section 8 of the Act can be detained at such place which has been specified by a general or special order. 14. Apex Court had the occasion to examine a similar provision in A.K. Roys case. A Constitutional Bench of the Court while dealing with various aspects of the detention law also examined the issue regarding lodgment of detenue at a particular place. 14. Apex Court had the occasion to examine a similar provision in A.K. Roys case. A Constitutional Bench of the Court while dealing with various aspects of the detention law also examined the issue regarding lodgment of detenue at a particular place. The Court while examining provisions of section 5 of the National Security Act, which were almost identical to section 10 of the Act, observed as under ( para 74):- "The objection of the petitioners to these provisions on the ground of their unreasonableness is not wholly without substance. Laws of preventive detention cannot, by the backdoor, introduce procedural measures of a punitive kind. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than in minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenue should have to suffer detention in such place as the government may specify. The normal rule has to be that the detenue will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi to keep him in detention in a fair off place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged. Besides, keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenue to claim the advantage of facilities like having his own food. The requirements of administrative convenience safety and security may justify in a given case the transfer of a detenue to a place other than that where he ordinarily resides, but that can only be by way of an exception and not as a matter of general rule. Even when a detenue is required to be kept in or transferred to a place which is other than his usual place of residence, he ought not to be sent to any far off places which by the very reason of its distance, is likely to deprive him of the facilities to which he is entitled. Whatever smacks of punishment must be scrupulously smacks of punishment must be scrupulously avoided in matters of preventive detention."(emphasis supplied) 15. Whatever smacks of punishment must be scrupulously smacks of punishment must be scrupulously avoided in matters of preventive detention."(emphasis supplied) 15. From these observations it is well settled that the normal rule is that the detenue should be kept in detention in a place which is within the surroundings of his/her place of residence. The authority has got powers keeping in view the administrative convenience, safety and security of the detenue, to lodge a detenue at place other than the place of his ordinary residence but such shifting should be on sufficient grounds and should not be as a measure of punishment. The purpose as is evident from the observations of the Apex court, is that the detenue should get opportunity to meet his friends and relatives and should not be deprived of the basic facilities. 16. The issue regarding placement of the detenue at a particular place also came under consideration in Geetinder Kaur v. State of Punjab (supra). The Constitutional Bench judgment in A.K. Roys case has not been cited or discussed by their lordships in Geetinder Kaurs case but we find that the view taken in A.K. Roys is almost reiterated in Geetinder Kaurs case. The Apex Court observed that it is ordinarily desirable that a detenue should be detained in an environment natural to him in point of climate, language, food and other incidents of living, in the actual decision concerning the place of detention these considerations must yield to factors related to and necessitated by, the need for placing him in preventive detention. The court further observed that the conditions imposed upon a detenue held in preventive detention must not be punitive in nature. On proceeding further the Court however, observed that the place of detention is matter for the administrative choice of the detaining authority and a court would be justified in interfering with that decision only if it was in violation of any specific provision of law or was vitiated, by arbitrary consideration and malafides. The Court did not interfere in the reasoning given by the detaining authority to detain the detenue in that case at a place other than his ordinary place of residence, as the court found that there was no material placed before the Court on this issue. It will be beneficial to reproduce para 3 of the judgment which reads as under:- "Mr. It will be beneficial to reproduce para 3 of the judgment which reads as under:- "Mr. Hardev Singh contends that the detenue should have been detained in preventive custody in the State of Punjab, which is his home State, or in any even at a place not far off from that State. We have given the matter careful thought. While it is ordinarily desirable that a detenue should be detained in an environment natural to him in point of climate, language, food and other incidents of living, in the actual decision concerning the place of detention these considerations must yield to factors related to, and necessitated by, the need for placing him in preventive detention. While we maintain that the conditions imposed upon a detenue held in preventive detention must not be punitive, they must nevertheless be such as to secure the effectiveness of his incarceration. The respondents have given reasons for detaining the detenue at Bharatpur, and we are not persuaded that the law allows us to interfere in the matter. The place of detention is a matter of for the administrative choice of the detaining authority, and a Court would be justified in interfering with that decision only if it was in violation of any specific provision of the law or was vitiated by arbitrary considerations and malafides. No such material has been placed before us. On the contrary, the affidavit filed by the respondents on the record indicate that the mind has been applied to the facts and circumstances of the case and that it was flet necessary to effect the detention at Bharatpur. It may be observed that the city of Bharatpur. Although situated in the State of Rajasthan is not very distant from the States of Punjab and Haryana. In the circumstances we find ourselves unable to grant the relief sought by Mr. Hardev Singh in respect of the place of detention." (emphasis supplied) 17. Honble Apex Court while dealing with the matter considered the location of Bharatpur viz-a-viz Punjab to which the detenue belonged. It would show that the Court while examining such issues can look into the location of the place of lodgment and other circumstances to arrive at a conclusion whether the detenue was placed in an environment natural to him in the point of climate, language, food and other incidents of living. It would show that the Court while examining such issues can look into the location of the place of lodgment and other circumstances to arrive at a conclusion whether the detenue was placed in an environment natural to him in the point of climate, language, food and other incidents of living. The Courts thus are not prevented to look into all these factors provided it is shown by sufficient material that the authority has acted arbitrarily or with mala-fides. 18. From this discussion we arrive at the following conclusions:- 1. Power to lodge a detenue at a place specified by the Government by a general or special order, vests in the competent authority; 2. Normal rule is that a detenue will be kept in detention in a place which is within the environs of his/her ordinary place of residence; 3. Detaining authority has got the power to lodge a detenue at any other place but it should be by way of an exception on sufficient grounds and not as a matter of general rule. 4. Lodging of a detenue in a far off place should not be with an intention to take a punitive measure. 5. If the lodgment is at a place other than the ordinary place of residence of the detenue it should be in an environment natural to the detenue in point of climate, language food and other incidents of living. 6. A detenue while in detention should be treated with human dignity and civilized norms. He should be provided with facilities like to meet his family member etc. 7. Lodgment of a detenue at a place other than his/her ordinary place of residence can be challenged by or on behalf of the detenue only on the ground of arbitrary consideration or malafides. The ground in this behalf should be specifically pleaded by or on behalf of the detenue. 19. Since under the Act powers vest in the authority to direct lodgment of a detenue at a place other than the one where he habitually resides, exercise of such a power can be questioned on the ground of arbitrary consideration or/ and mala fides. The courts can examine the issue only if arbitrary exercise of power or malafides are specifically pleaded on behalf of the detenue. 20. The courts can examine the issue only if arbitrary exercise of power or malafides are specifically pleaded on behalf of the detenue. 20. In the present case we find that no such ground is taken in the main petition or application for change of lodgment, by the petitioner. Para 20(g) of the petition (HCP No. 40 of 2010), which deals with the issue reads as under: - "That the respondent no. 2 has not only detained the detenue under the provisions of Public Safety Act, but as a measure of punishment has directed him to be lodged at District Jail, Kathua. In this behalf, it is respectfully submitted that a constitutional Bench of Honble Supreme Court in case `A.K.Roy v. Union of India and others (AIR 1982 SC 710) has authoritatively pronounced that when an order of detention is passed against a person under the preventive law, it is neither fair not just to keep him in a place which is far away from his home. The Honble Supreme Court has also held that the normal rule is that the detenue be kept in detention in a place which is within the environs of his/her place of residence. In the present case, the detenue has however been ordered to be lodged in District Jail, Kathua, which is about 400 KMS away from Srinagar. The respondent No. 2 having thus issued the impugned order of detention as a measure of punishment against the detenue, therefore also, the order of detention of the detenue dated 9.2.2010 is liable to be set aside." 21. This clause is silent in so far as ground regarding arbitrary exercise of power or mala-fides is concerned. 22. The application filed for change of place of detention also does not contain any such ground. It only states that the order of lodgment is in violation of the law laid down in A.K.Roys case and that lodgment of the detenue in District Jail, Kathua has violated his legal, fundamental and constitutional rights. 23. Since no ground regarding arbitrary exercise of power or malafides was taken, we find the learned Single Judge could not have directed change in the lodgment of the detenue from Kathua to Srinagar. 23. Since no ground regarding arbitrary exercise of power or malafides was taken, we find the learned Single Judge could not have directed change in the lodgment of the detenue from Kathua to Srinagar. As has been laid down by the Supreme Court in Geetinder Kaurs case, law does not allow the courts to interfere in the matter unless the order is vitiated by arbitrary consideration or mala-fides. 24. We find due force in the submissions of Mr. Magray that learned Single Judge should not have directed shifting of the detenue from District Jail, Kathua to Central Jail, Srinagar. Power to remove a detenue from one place of detention to another place vests in the Government. If the court finds that on the ground of arbitrary consideration or mala fides lodgment of a detenue at a particular place is not justified, the Court can direct the Government to consider shifting of the detenue to any other suitable place. The proper course is to leave it to the Government to take a suitable decision in the matter regarding shifting of the detenue to another place. The court has got ample powers to ensure compliance of its orders issued by it in this behalf. 25. On these grounds we find the order impugned cannot sustain. 26. We notice that the order of detention does not disclose the reasons to lodge the detenue at District Jail, Kathua. The order reads as under:- "Whereas, Sr. Superintendent of Police, Srinagar vide his letter No. Lg/Det-2533/10/513-16 dated 8.2.2010 has produced material record such as dossier and other connecting documents in respect of Shabir Ahmad Shah S/o Ghulam Mohammad Shah R/o Anantnag A/P Sanatnagar, Srinagar. Whereas, I District Magistrate, Srinagar have perused the record carefully after it was produced before me in respect of the said person. Whereas after perusal of the record submitted by the Sr. Superintendent of Police, Srinagar and after applying my mind carefully and having regard to the requirements of law, I am satisfied that with a view to prevent Shabir Ahmed Shah S/o Gh. Mohammad Shah R/o Anantnag A/P Sanatnagar, Srinagar from acting in any manner prejudicial to the security of the State, it is necessary to detain the said person under the provisions of J&K Public Safety Act, 1978. Now, therefore in exercise of powers conferred under Section (8) of the J&K Public Safety Act, 1978. Mohammad Shah R/o Anantnag A/P Sanatnagar, Srinagar from acting in any manner prejudicial to the security of the State, it is necessary to detain the said person under the provisions of J&K Public Safety Act, 1978. Now, therefore in exercise of powers conferred under Section (8) of the J&K Public Safety Act, 1978. I, District Magistrate, Srinagar hereby direct that the said to Shabir Ahmad Shah be detained under PSA and is ordered to be lodged in District Jail Kathua." 27. The order only directs that the detenue shall be lodged at District Jail, Kathua but does not give grounds for the same. As has rightly been observed by the learned Single Judge, it is the responsibility of the detaining authority to indicate in his records or in the order of detention that there is a justified requirement in the interest of administration, security or safety for lodging the detenue in a jail at a place other than one located near his/her ordinary place of residence. Non recording of reasons may not render an order of lodgment bad in law or invalid by it will prevent the Court to appreciate the grounds of arbitrary consideration or mala-fides, if raised by the detenue. The grounds must be known to the detenue also to enable him to challenge it, if he finds any arbitrariness or mala fides in it. 28. Since the order of detention does not contain the reasons, and the grounds were given by the State for the first time in the objections we deem it just and proper and in the interest of justice to permit the detenue if advised to do so, to plead any valid ground available to him before the learned Single Judge. 29. In these circumstances while allowing the present appeal and setting aside the order of impugned, we request the learned Single Judge to re-consider the matter if any additional grounds are pleaded by the detenue, about his lodgment at District Jail, Kathua, in light of the observations made above. Appeal allowed.