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2012 DIGILAW 499 (JK)

Mohammad Shafi Shah v. State & Ors.

2012-08-13

MOHAMMAD YAQOOB MIR

body2012
1. In pursuance to order No.DMS/PSA/64/2011 dated 13.3.2012 detenue Mohammad Shafi (alias Dr. Dawood Nissar) has been taken into preventive custody by invoking powers under Section 8 of the J&K Public Safety Act as his activities were found to be prejudicial to the security of the State so has been lodged in District Jail, Kathua. By the instant petition quashment of the said order is sought on various grounds. 2. First learned counsel for the petitioner would contend that the order of detention has been passed on the basis of the material produced by SSP, Srinagar before the District Magistrate, such as dossier and other connecting documents as reflected in the order of detention. Neither copy of the letter dated 10.3.2012 as addressed by SSP to the District Magistrate nor the material/documents accompanying such letter has been supplied to the detenue, therefore, detenue has been deprived of making an effective representation against the order of detention. The right guaranteed under Article 22(5) of the Constitution of India, as such, is infringed. 3. In opposition learned counsel for the respondents would contend that the material/documents, based on which detaining authority has derived satisfaction for passing the order of detention, have been supplied to the detenue. In support thereof, has produced the detention record which contains the receipt of grounds of detention by the detenue, perusal of which would reveal that the detenue has received the grounds of detention and the order of detention dated 13.3.2012 consisting of five leaves plus eight leaves and one leaf i.e. letter No.DMS/PSA/Jud/375- 78/2011 dated 13.3.2012. It would clearly indicate that the letter of SSP bearing No.Lgl/Det-2783/2012/996-99 dated 10.3.2012 has not been supplied to the detenue and then it is not made clear as to what were those eight leaves which have been supplied to the detenue. Even in the counter affidavit position/detail vis-a-vis eight leaves is not clarified as to what those eight leaves were. So admittedly the material/documents considered by the detaining authority for deriving subjective satisfaction has not been supplied to the detenue. 4. Past history and activities of the detenue have been narrated in the grounds of detention but reference to the documents in the grounds of detention would suggest that it was imperative for the detaining authority to send copies of the documents so referred in the grounds of detention to the detenue. 4. Past history and activities of the detenue have been narrated in the grounds of detention but reference to the documents in the grounds of detention would suggest that it was imperative for the detaining authority to send copies of the documents so referred in the grounds of detention to the detenue. Infringement of such right to represent against the order of detention as guaranteed under Article 22(5) of the Constitution would render the order of detention as illegal. 5. Contention of the learned counsel for the respondents that non- supply of the documents would not prejudice the detenue as the details of his activities have been specifically made mention of in the grounds of detention, furthermore the details of past activities, as referred to in the grounds of detention, are given simply to show what was the past of the detenue, therefore, the documents which are connected with past activities of the detenue were not required to be supplied nor non-supply of such documents would cause prejudice to the detenue in making representation. In support of this contention, learned counsel relied on the judgment captioned State of Tamil Nadu & anr v. Abdullah Kadher Batcha & anr, reported in AIR 2009 SC 507 . In this connection it shall be quite relevant to quote para 8 of the said judgment: “8. While examining whether non supply of a document would prejudice a detenu the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non supply thereof would prejudice to the detenue. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced”. 6. Applying the law as has been laid, in the present case even the documents relatable to the latest activities based on which order of detention was found to be passed are not shown to have been supplied to the detenue. Copy of the dossier, copy of the letter addressed by SSP to District Magistrate and the connecting documents pertaining to the activities of the detenue for the year 2011 are not also shown to have been supplied to the detenue. Copy of the dossier, copy of the letter addressed by SSP to District Magistrate and the connecting documents pertaining to the activities of the detenue for the year 2011 are not also shown to have been supplied to the detenue. Every case has to be considered in the background of its own facts. In the instant case non-supply of the documents as referred to above has caused prejudice to the detenue. 7. Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3) (b) of the Constitution which is an exception to Article 21 of the Constitution. The said exception authorises the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person and such power shall be exercised in a manner which may not have the trappings of depriving a person of the guaranteed liberty. In short an exceptional case has to be made out for passing the order of preventing a person from acting in any manner which shall be prejudicial, in the instant case, to the security of the State but while doing so procedural safeguards are to be respected. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this connection it shall be quite relevant to quote paras 37 and 38 of the judgment rendered by a Bench of three Hon’ble Judges of the Hon’ ble Apex Court in case captioned Rekha Vs. State of Tamil Nadu and anr, reported in (2011) 5 SCC 244 : “37. As observed in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha vide SCC para 5:(SCC p.27) “5....The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.” As observed by Mr. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.” As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee v. McGrath:(US p. 179) “...It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law”. 38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society” s assurances that the authorities will behave properly within rules distilled from long centuries of concrete experience”. 8. The next star ground, as highlighted by the learned counsel for the petitioner, is that as per grounds of detention the detenue has been arrested on 01.12.2011 and from his possession ammunition was recovered so case was registered as FIR No.208/2011 P/S Ram Munshi Bagh for commission of offences punishable under Section 7/25 Arms Act, 121-A RPC, 18, 12 ULA(AP) Act, then his custody was changed from said FIR to FIR No.24/2010 P/S Maisuma and thereafter to case FIR No.78/2009 P/S Kothibagh. Finally detenue was under remand so was in custody of Police Station Ram Munshi Bagh Srinagar. So admittedly detenue was in custody in connection with above referred cases when the order of detention has been passed. There was no requirement of passing the order of detention as the detenue was involved, among others, in the commission of offence punishable under Section 121-A RPC regarding which case is registered as FIR No.208/2011. The said offence carries the punishment of life imprisonment or ten years, so ordinarily he could not get released on bail for such heinous offence. That apart, in the grounds of detention it has been recorded that detenue is in custody and there is likelihood of his release on bail as he has already moved an application for bail before the Court. 9. In the memo of petition in para 3(b) it is specifically pleaded as “it is respectfully submitted that no bail application has been filed by the detenue in the foresaid cases before any court of law”. 9. In the memo of petition in para 3(b) it is specifically pleaded as “it is respectfully submitted that no bail application has been filed by the detenue in the foresaid cases before any court of law”. The respondents in their counter affidavit have not denied this fact. Then how the detaining authority in the grounds of detention has recorded that the detenue has already applied for bail, shows as to how the detaining authority has applied its mind. 10. Learned counsel for the petitioner would contend that when bail application has not been filed, how could detaining authority record satisfaction that there is likelihood of release of the detenue on bail, supporting this contention relied on para 27 of the Rekha” s case referred above. Para 27 of the judgment reads as under:- “27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed”. 11. In the counter affidavit nowhere it has been stated that there was any co-accused who has been granted bail and in case it would have been so, then detaining authority could be justified in stating that there is likelihood of the detenu being released on bail. 12. 11. In the counter affidavit nowhere it has been stated that there was any co-accused who has been granted bail and in case it would have been so, then detaining authority could be justified in stating that there is likelihood of the detenu being released on bail. 12. Learned counsel for the respondents relied on the judgment captioned G. Reddeiah vs. Government of Andhra Pradesh & anr, reported in (2012) 2 SCC 389 but the said judgment is of no help to him because in the reported judgment the detenue was already in custody when detention order was passed as the detenue had been arrested on 09.10.2010 in connection with the case registered against him and released on bail on 10.11.2010 while as order of detention was passed on 12-11.2010. Noticing the same position, the Hon’ble Apex Court has ruled that in case detaining authority was aware about the relevant fact, then satisfaction derived cannot be found fault with. It shall be quite relevant to quote following portion from para 17 of the said judgment: “It is clear that if the detaining authority was aware of the relevant fact, namely, that the detenu was under custody from 9-10-2010 and he would be released or likely to be released or as in this case released on 10-11-2010 and if an order is passed after due satisfaction in that regard, undoubtedly, the order would be valid.....” 13. In the instant case in the grounds of detention the detaining authority has categorically recorded that the detenue has already moved an application for bail and there is likelihood of his release when in fact no such bail application has been filed, therefore, to say there is likelihood of his release on bail is imaginary. Otherwise also, detaining authority perhaps has not noticed the punishment prescribed for the offence punishable under Section 121-A RPC. For such offence likelihood of grant of bail cannot be anticipated. 14. Learned counsel for the petitioner in support of the aforesaid ground has rightly relied on the judgment of the Hon’ble Apex Court rendered in Criminal Appeal No.26 of 2012 arising out of SLP (Crl.) No.7926 of 2011) captioned Yumman Ongbi Lembi Leima Vs. State of Manipur & ors, decided on 4th January, 2012. Para 13 of the said judgment reads as under: “13. State of Manipur & ors, decided on 4th January, 2012. Para 13 of the said judgment reads as under: “13. Having carefully considered the submissions made on behalf of respective parties, we are inclined to hold that the extra-ordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention. Article 21 of the Constitution enjoins that no person shall be deprived of his life or personal liberty except, according to procedure established by law. In the instant case, although the power is vested with the concerned authorities, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Article 21 and 22(2) of the Constitution”. 15. In view of the facts of the present case and the law laid down by the Hon’ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain, therefore, other grounds projected in the petition are not required to be dealt with. 16. For the afore-stated facts, reasons and the law, the order of detention impugned is quashed leaving it open to the respondent- authorities to deal with the detenue in connection with the cases registered against him in accordance with law and the directions as shall be passed by the court of competent jurisdiction. 17. Disposed of as above. 18. Detention records, as produced, be returned to the learned counsel for the respondents.