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2011 DIGILAW 680 (JK)

Shameem Ahmad Sofi v. State & Anr.

2011-12-03

MOHAMMAD YAQOOB MIR

body2011
1. Detenue has been detained pursuant to detention order bearing No.DMS/PSA/16/2011 dated 17.8.2011, passed by District Magistrate, Srinagar. 2. According to the learned counsel for the petitioner, the detenue had been in custody in connection with case FIR No.73/2011 for the commission of offence under Section 7/25 A. Act and Section 13 ULA (P) Act registered in Police Station, Parimpora and while in custody has been detained under Public Safety Act and lodged in Kote-bhalwal Jail, Jammu. No compelling reason has been recorded for passing the order of detention when the detenue was already in custody. Further the material forming base for the detention has not been supplied to the detenue disabling him from making an effective and purposeful representation against his detention. 3. The ground projected has a prevailing force as the Detaining Authority has not recorded any compelling reason for passing the order of detention when the detenue in connection with substantive offence was already in custody. From the records as produced nothing in that direction is forth coming. 4. It is settled that a person is in custody in connection with other case can be detained under the provisions of preventive laws provided there are compelling circumstances for so doing otherwise the order of detention shall be bad. In this connection it is quite apt to quote following para from the judgment T.P. Moideen Koya v. Government of Kerala and ore. reported in 2004 (8) SCC 106 : "........in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the deteue was likely to be released on bail" 5. It is not forthcoming from records as made available that the material forming base for the detention has been made available to the detenue when the detenue admittedly was arrested in connection with case FIR No. 73/2011. The statements recorded under Section 161 Cr. P.C were also required to be furnished to the detenue so as to enable him to make an effective and purposeful representation. The non supply of the material disables the detenue from making an effective representation so as to show his innocence. The statements recorded under Section 161 Cr. P.C were also required to be furnished to the detenue so as to enable him to make an effective and purposeful representation. The non supply of the material disables the detenue from making an effective representation so as to show his innocence. Non supply of material forming base for detention to the detenue is oglation of the right guaranteed under Article 22(5)of the Constitution. 6. It shall be quite advantageous to quote following para from the judgment rendered in case captioned Powanammal v. State of T.N. and another reported in 1999 (2) SCC 413 :. "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 detenue but also to supplying their translation in script or language which is understandable to the detenue. 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. The object of passing the order of detention is to deter a person from acting in any manner prejudicial to the security opthe State or public order. When the movement of the person is already under curtailment i.e. he is in custody in connection with a case, then there is no requirement of passing an order of detention unless, of course, there exist such circumstances which warrant passing of order of detention. Preventive laws have the effect of depriving a person of his liberty which is precious but deprivation thereof at times becomes indispensable. However, for justifying such deprivation, the safeguards as are provided by law are also required to be respected. A person who dares to cause any type of insecurity or threatens security of the State has to be dealt with iron hand but for so doing the Constitutional safeguards as are available are also to be respected. 8. For the stated reasons, since the order impugned has not been passed in consonance with the requirement of law, therefore, does not survive, as such is quashed. Detenue, namely, Shameem Ahmad Sofi S/O Abdul Khaliq Sofi R/O Sether Sangam Bijbehara, shall be released forthwith provided he is not required in connection with any other case. 8. For the stated reasons, since the order impugned has not been passed in consonance with the requirement of law, therefore, does not survive, as such is quashed. Detenue, namely, Shameem Ahmad Sofi S/O Abdul Khaliq Sofi R/O Sether Sangam Bijbehara, shall be released forthwith provided he is not required in connection with any other case. Detention record as produced be returned to the learned counsel for the respondents.