1. One Shri Shakeel Ahmad Bhat S/O Ghulam Qadir Bhat R/O Malik Angan, Fateh Kadal, Srinagar (detenue here inafter), has been ordered to be detained by the respondent No.2 - District Mag istrate, Srinagar vide order No. DMS/ PSA/39/2011 dated 20-10-2011, in exercise of powers conferred upon him u/s 8 of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978). The said order is questioned by medium of this writ petition. 2. Order dated 31-01-2012, passed by one of the coordinate benches of the Court may be taken note of: "Learned counsel for the respon dents seeks and is granted ten days time to file counter affidavit, with an advance copy to other side. In the meantime, respondents to comply with the interim direction dated 15-12-2011. In the event counter is not filed, right to file the same shall stand closed." 3. Reply affidavit/objections, in terms of the aforesaid order, have not been filed. So much so, none appeared in this case for the respondents nor has record been produced. The right to file reply affidavit/objections stands already closed. 4. Learned counsel for the petitioner submitted that the detenue was de tained earlier also which detention was challenged before the Court through HCP 125/2010 and the order of detention was quashed vide order dated 29-07-2011. However, due to a clerical mistake, which had occurred therein, the Court, vide its orders dated 24-08-2011 8s 29-08-2011, passed in the CMPs 100/2011 86 104/2011 respec tively, rectified the mistake and or der of detention was quashed. Atten tion of the Court is invited to the grounds of detention and it is submit ted by the learned counsel that, in fact, the detenue was not released from the custody after quashnaent of the earlier order of detention but he has been shown to have been arrested on 14-09-2011 by police station, M. R. Gunj, u/s 107/151 Cr. P.C. It is further submit ted that the grounds of detention do not disclose any activity attributed to the detenue after his release from preven tive custody and till such time the detenue was rearrested on 14.09.2011. Learned counsel further submitted that without there being any material or ground available, the detention order, impugned herein, has been passed. 5. The earlier order of detention, which was challenged in this Court, resulted in quashment of the same and the final order in the petition/Cr.
Learned counsel further submitted that without there being any material or ground available, the detention order, impugned herein, has been passed. 5. The earlier order of detention, which was challenged in this Court, resulted in quashment of the same and the final order in the petition/Cr. MPs was passed on 29-08-2011. The grounds of detention show that the detenue was arrested on 14-09-2011 by police sta tion, M. R. Gunj u/s 107/151 Cr. P. C. The grounds, which have become ba sis for passing of impugned order of de tention are taken note of: “..............It is pertinent to mention here that you are a known anti social element The magnitude of the distur bance being created by you can be gauged from the fact that on several occasions you, with the assistance of your other associates, have been able to enforce strikes, block traffic, force the closure of business establish ments and disrupt the supply of essential commodities in M. R. Gunj, Nowhatta and its adjacent areas. All these activities are basically un dertaken by you in order to carry forward the ideology of APHC (G) group, which is to secede the State of J&K and to annex it with Pakistan. You are an important functionaries in the set up of APHC (G) group who ensure that an atmosphere is created for the activities of the secessionists. Taking a wholesome view of your ac tivities, it can be safely said that your activities are prejudicial to the main tenance of security of State and nor mal law which has been invoked against you on several occasions has not been sufficient to stop you from indulging you in such activities. Therefore, it is clear that your activities are highly prejudicial to the main tenance of security of the State and warrant immediate preventive mea sures to be taken against you. On the basis of aforementioned ac tivities I have reached to the conclu sion that it would be expedient to de tain you under the provisions of J&K public Safety Act, 1978 for which or ders are being issued separately." 6. A cursory look at the aforemen tioned grounds reveals that a general statement has been made against the detenue. 7.
A cursory look at the aforemen tioned grounds reveals that a general statement has been made against the detenue. 7. Right to life and liberty is guaran teed under article 21 of the Constitu tion of India and a person can be de prived of his life and liberty only in ac cordance with the procedure estab lished by law. Framing of detention laws is authorized by the Constitution itself. However, as the person, who is detained under the preventive deten tion laws, is not being produced before a Court of law for disputing the charges leveled against him, the Constitution makers have provided inbuilt safe guards under article 22 of the Consti tution of India. The so called grounds, notice whereof is taken in this order supra, taken individually or together, will not, in law, constitute ground/s for depriving a person of his liberty. These grounds suffer not only from non appli cation of mind but by vagueness as well. 8. The detenue was arrested u/s 151 Cr. P. C on the allegation that be cause of his activities, there was ev ery likelihood of disturbance of the pub lic tranquility or even it may result in breach of peace. Section 107 Cr. P. C is a complete code in itself and it pro vides a scheme for dealing with the person in respect of whom there is in formation that such person may likely commit, breach of peace or disturb the public tranquility or may do any wrong ful act that may occasion in breach of peace. After following the procedure, such a person can be asked to show cause as to why he should not be or dered to execute a Bond with or with out sureties for keeping peace for such period not exceeding one year or as the District Magistrate concerned may deem fit to fix. In the case of like na ture, the recourse can be had to the provisions of Section 107 Cr. P. C and when there is imminent threat to the public peace, recourse can be had, in exceptional cases, to Section 151 Cr. P. C also. The detaining authority has by passed the provisions contained in Criminal Procedure Code when, as a matter of fact, the police arrested the detenue u/s 151 Cr. P. C. 9. For the above stated reasons, this petition is allowed.
P. C also. The detaining authority has by passed the provisions contained in Criminal Procedure Code when, as a matter of fact, the police arrested the detenue u/s 151 Cr. P. C. 9. For the above stated reasons, this petition is allowed. Order No. DMS/ PSA/39/2011 dated 20.10.2011, passed by respondent No.2, District Magistrate, Srinagar, is quashed with further di rection to release the person of Shri Shakeel Ahmad Bhat S/O Ghulam Qadir Bhat R/O Malik Angan, Fateh Kadal, Srinagar from preventive cus tody. 10. Disposed of along with Cr. M. Ps.