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2013 DIGILAW 424 (JK)

Hafizullah Mir v. State Of J&K

2013-07-26

Virender Singh

body2013
1. Mst. Wazira Begum, petitioner herein is the wife of one Hafizullah Mir son of Late Ghulam Mohammad Mir resident of Badoora Anantnag (hereinafter to be referred to as `detenu'). She through the medium of instant petition seeks quashment of detention order No. 01/DMA/PSA/ DET/2013 dated 02.04.2013 (for short `impugned detention order') passed by District Magistrate Anantnag (respondent No. 2) on the dossier furnished to him by Senior Superintendent of Police, Anantnag (respondent No. 3) vide his letter No. Pros/PSA/Det/2013/391-94 dated 25.02.2013. The said impugned order was executed upon the detenu on 03.04.2013 as is evident from the detention record made available to the Court by Mr. Chashoo, learned AAG. 2. It would not be out of place to mention here that earlier to the passing of impugned detention order, the detenue has already been detained under four Detention Orders Nos. Det/PSA/DMA/098/10 dated 14.09.2009 which came to be quashed by this Court vide order dated 19.05.2010 passed in HCP No. 244/2009; Det/DMA/PSA/10/23 dated 23.11.2010 quashed vide order dated 04.05.2011 passed in HCP No. 405/2010; 69 / DMA /PSA/DET/2012 dated 07.03.2012 quashed vide order dated 31.08.2012 passed in HCP No. 47/2012 and 78/DMA/PSA/DET/2012 dated 08.11.2012, quashment of which was sought through HCP No. 178/2012, but before it could be considered finally, the said detention order was revoked and fresh detention order (impugned herein) came to be passed. This is how HCP No. 178/2012 came to be disposed of by this Court vide order dated 17.05.2013 having been rendered infructuous. However, on the request of Mr. Qayoom, learned counsel for the petitioner, records of the same were tagged with the instant petition as he wanted to refer to the orders passed by this Court while quashing the earlier detention orders which form part of the said petition. 3. Despite availing opportunities including the last one, counter affidavit has not been filed by the State. Right to file the same, thus, stands closed vide order dated 03.06.2013. 4. Heard learned counsel for both the sides, perused the grounds carved out in the instant petition, the other documents attached thereto and the record made available to the Court by the learned State counsel. 5. Mr. Right to file the same, thus, stands closed vide order dated 03.06.2013. 4. Heard learned counsel for both the sides, perused the grounds carved out in the instant petition, the other documents attached thereto and the record made available to the Court by the learned State counsel. 5. Mr. Qayoom submits that the impugned detention order is the 5th consecutive detention order slapped upon the detenu right from September 2009 which by itself is an indicative of the fact that the State is bent upon to keep him in the jail for one reason or the other, whereas on each occasion whenever the detenu is detained under any detention order, the same came to be quashed by this Court finding certain fundamental flaws in it as is evident from the photostat copies of the judgment available with the records of HCP No. 178/2012. 6. Learned counsel then submits that, if one looks at the grounds of detention which has been made basis of passing the impugned detention order and compares them with the grounds of detention which are made basis of passing the earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012 challenge to which was thrown through HCP No. 178/2012, but for placement of the paras herein and there, the grounds of detention are verbatim the same even word for word and the only difference is of the letter sent by Senior Superintendent of Police, Anantnag, inasmuch, in the detention order dated 08.11.2012, there is a reference to letter No. Pros/PSA/Det/2012/4065-68 dated 06.11.2012 and the impugned detention order is passed on the basis of letter No. Pros/PSA/Det/2013/391-94 dated 25.02.2013. According to learned counsel, this, on the face of it, speaks volumes of non-application of mind by District Magistrate, Anantnag and it appears that he just endorsed whatever was said by Sr. Superintendent of Police Anantnag in his letter without caring to know that virtually there was no material difference in the chain of events which compelled the State to pass the earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012 which was made ineffective by the State itself during the pendency of HCP No. 178/2012 and the present detention order. 7. Learned counsel vehemently submits that during this period, the detenu has not come out of the jail even for a day, therefore, there appears to be no justification for slapping the present detention order upon him. 7. Learned counsel vehemently submits that during this period, the detenu has not come out of the jail even for a day, therefore, there appears to be no justification for slapping the present detention order upon him. According to learned counsel, it is not only the casual approach, but a callous approach adopted by the State which is condemnable. 8. On certain statutory flaws also, Mr. Qayoom submits that the present detention order is not sustainable for the reason that the detenu has been detained so as to prevent him from acting in any manner prejudicial the security of the State and maintenance of public order as is reflected in the impugned order which is not permissible as a person cannot be detained on such basis. In support of his submissions, he has relied upon a judgment of Hon'ble Supreme Court rendered in case titled G.M. Shah v. State of Jammu and Kashmir, reported in (1980) 1 SCC 132 : 2010 (6) JKJ SC-850. He refers to paras 8 & 9 of the said judgment which read: 8. "The expressions "law and order", "public order" and "security of the State" are distinct concepts though not always separate. Whereas every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State". This is borne out from the observations made by Patanjali Sastri, J. in the decision of this Court in Romesh Thappar v. The State of Madras (1) which are as follows:- "As Stephen in his Criminal Law of England observes: Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely that the normal tranquility of a civilized society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it." Though all these offences thus involve disturbances of public tranquility and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly "sub- clause (b)" and (c) right of association "sub-clause (c)" may be restricted under clauses (3) and (4) of Article 19 in the interests of "public order," which in those clauses includes the security of the State. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Schedule, which refers to the "security of a State" and "maintenance of public order" as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquility marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security to of the State the relatively min or breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind." 9. As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. `Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors" 9. Mr. Qayoom further submits that even otherwise the detenu has never applied for bail in FIR No. 344/2012 registered at Police Station Anantnag which has now been made basis of passing the impugned detention order, therefore, the Detaining Authority could not infer that the detenu, if enlarged on bail, will indulge in anti-national activities as indicated in the grounds of detention. In support of his submissions, learned counsel relies upon para No. 27 of the Judgment rendered in case titled Rekha v. State of Tamil Nadu, reported in (2011) 5 SCC 244 which reads reads: "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 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". 10. Mr. 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". 10. Mr. Qayoom lastly submits that, no doubt, the impugned detention order was executed upon the detenu while he was lodged in the jail on 04.04.2013, but the copy of FIR No. 344/2012 and for that matter, copy of other FIRs referred to in the grounds of detention were not made available to him in the jail so as to enable him to make an effective representation before the authority concerned putting forth his stance, as such, the detenu has been deprived of his valuable right available to him in terms of provisions of Article 22 of the Constitution of India. To strengthen his submissions on this ground, Mr. Qayoom relies upon a Judgment of Hon'ble Supreme Court rendered in case titled Sophia Ghulam Mohammad v. State of Maharashtra, reported in AIR 1999 SC 3051 wherein it has been held: "The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language. 11. Learned counsel also relies upon a Judgment rendered by Division Bench of this Court in LPA (HC) No. 180/2008 decided on 03.09.2009 wherein it has been held: "What are, in fact, grounds of detention have been dealt with by the Hon'ble Supreme Court in many a judgments. The stated grounds of detention recording satisfactory bereft of the materials upon which such satisfaction had been recorded and which have been indicated in no uncertain terms in the grounds of detention required to be furnished in terms of the provisions of Article 22 of the Constitution:. The stated grounds of detention recording satisfactory bereft of the materials upon which such satisfaction had been recorded and which have been indicated in no uncertain terms in the grounds of detention required to be furnished in terms of the provisions of Article 22 of the Constitution:. It has been further held: "Failure on the part of the detaining authority in furnishing the documents upon which satisfaction had been recorded smacked Fundamental Rights of the detenu and accordingly, the subject detention order is not legally sustainable" 12. Mr. Qayom submits that all these fundamental flaws were noticed by this Court earlier also dealing with HCP Nos. 405/2010 and 47/2012 and the same basic flaws are once again staring at the impugned detention order. He, thus, prays that the impugned detention order may be quashed and the detenu be set at liberty forthwith. 13. Per contra, Mr. Chashoo, learned AAG, submits that the detenu does not deserve any relief sought for herein for the reason that on every occasion whenever he came out of the jail after the quashment of earlier detention order(s), he did not stop indulging himself into subversive activities creating law and order problems. He then submits that may be the State has not filed any counter affidavit even after availing last opportunity, but the detention record reflects that after the earlier detention order dated 07.03.2012 was quashed by this Court vide HCP No. 47/2012, the detenu was again booked in a case FIR No. 344/2012 reference thereto has been made in the said detention order, therefore, the State thought it necessary to detain him once again by passing the aforesaid detention order. 14. Mr. Chashoo further submits that the necessity of passing the impugned detention order arose for the reason that the earlier detention order No. 08.11.2012 had already outlived its life, therefore it cannot be said that there is no well founded basis for passing the present detention order. According to him, the detenu, who has involved himself into the nefarious activities prejudicial to the security of the State right from September 2009, does not deserve the relief as asked for. 15. According to him, the detenu, who has involved himself into the nefarious activities prejudicial to the security of the State right from September 2009, does not deserve the relief as asked for. 15. After hearing rival contentions of both the sides and going through the detention record made available to the Court by learned State counsel, I am of the considered view that the detention order (impugned herein) is also suffering from same basic flaws as had crept in earlier detention order dated 23.11.2010 passed by respondent No. 2 and quashed by this Court vide order dated 04.05.2011 in HCP No. 405/2010 and detention order dated 07.03.2012 and quashed by this Court vide order 31.08.2012 passed in HCP No. 47/2012. The ratio of aforesaid judgments relied upon by Mr. Qayoom in the present case advantage of which has already been taken by the detenu in the aforesaid two HCPs seeking the quashment of earlier detention orders is squarely applicable to it also. 16. Part from that, what is worth noticing is that the grounds of detention which have been made basis of passing the present detention order are absolutely the same which were brought to the notice of District Magistrate Anantnag before passing the earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012 which subsequently became ineffective as it had outlived its life after the expiry of period of detention as is evident from one of the communications addressed by Mr. Chashoo, learned AAG to District Magistrate Anantnag during the pendency of HCP No. 178/2012 seeking intimation about the status of the detenu, so that he could report instructions in this regard before the Court. 17. Records of HCP No. 178/2012 further indicate that the said petition was taken up by the Court on 03.04.2013. One aspect is very clear that till 3rd of April 2013, learned State counsel was not aware of the fact as to whether the present detention order has been passed after the expiry of earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012. Records of HCP No. 178/2012 further indicate that the said petition was taken up by the Court on 03.04.2013. One aspect is very clear that till 3rd of April 2013, learned State counsel was not aware of the fact as to whether the present detention order has been passed after the expiry of earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012. It further indicates that even up to 13.05.2013 when the said petition was taken up by the Court and counsel for the detenu apprised the Court that the relations of the detenu visited the jail to meet him, but they were informed that he was not lodged in Sub Jail Hiranagar for which, the State was directed to disclose about the status vis-a-vis his lodgment and file a counter affidavit to the main petition also before 17th of May, 2013 , Mr. Chashoo was not aware of the passing of the present detention order, otherwise he would have apprised the Court of the same. Detention record made available to the Court indicates the counter has been filed by District Magistrate Anantnag in HCP No. 178/2012 on 13th of May, 2013, whereas no such counter is available on the records of HCP No. 178/2012. It is only on 17.05.2013 the said petition came to be disposed of having been rendered infructuous as the counsel for the detenu informed the Court that the earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012 stands revoked, whereas it had expired. 18. What appears to the Court from the record made available to it is that the detenu was, in fact, not aware of the exact period of his detention which information should have been supplied to him by the State in the jail or at least by filing counter in the aforesaid petition. Not only that, the State counsel is not made aware by District Magistrate Anantnag or any other authority about the fate of earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012. The State Agency perhaps takes such type of cases in a very casual manner and proper instructions are not provided to the State counsel who feels totally handicapped in assisting the Court in most of the cases of this nature which has far reaching effect. I have referred to all these facts for the reason that they have certain some bearing upon the decision of the present petition also. 19. I have referred to all these facts for the reason that they have certain some bearing upon the decision of the present petition also. 19. Adverting to the facts of the present case, once the earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012 for which the detenu was detained for a specific period had already outlived its life as indicated in one of the communications No. MAC/AAG/2013/259-60 dated 03.04.2013 referred to hereinabove addressed to District Magistrate Anantnag, there appears to be no reason much less compelling reason for him to pass another detention order (impugned herein), that too, virtually on the same allegations as contained in the earlier grounds of detention attached with detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012 except that the letter sent to him by Senior Superintendent of Police Anantnag is bearing a separate number and that the lodgment of the detenu from one jail to another jail is also changed. Not only that, even in the fresh grounds of detention which are provided to District Magistrate Anantnag, the concerned SSP has not bothered to whisper a word that the earlier detention order has outlived its life because of the expiry of period of detention. What one can gather from all this is that there is non-application of mind on all quarters and in a very casual manner after the expiry of earlier detention order, the present detention order has been slapped upon the detenu. 20. Although it is not said in so many words that the detenu was released on bail in FIR Nos. 305/2011 and 310/2011 registered at Police Station Anantnag reference whereof is made in detention order No. 69/DMA/PSA/DET/2012 dated 07.03.2012 available with the records of HCP No. 178/2012, but one can comfortably infer from the grounds of detention which have been made basis of passing the earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012, or even the present detention order that the detenu must have got the bail in the aforesaid FIRs for substantive offences, otherwise he could not possibly be arrested in case FIR No. 344/2012 registered at Police Station Anantnag. This also speaks of a casual approach at the end of District Magistrate Anantnag. 21. Viewed thus, the case of the detenu is not only squarely covered by the ratio of aforesaid judgments relied upon by Mr. This also speaks of a casual approach at the end of District Magistrate Anantnag. 21. Viewed thus, the case of the detenu is not only squarely covered by the ratio of aforesaid judgments relied upon by Mr. Qayoom vis-a-vis the basic flaws, the casual approach in which the impugned detention order came to be passed by District Magistrate Anantnag after the period of earlier detention order No. 78/DMA/PSA/DET/2012 dated 08.11.2012 had expired, makes the present detention order unsustainable on all counts, as such, deserves to be quashed. Ordered accordingly. 22. Custody of the detenu shall now be governed in accordance with the directions as shall be passed by the Court concerned in connection with case FIR No. 344/2012 registered at Police Station Anantnag in which he is stated to be in custody as an under-trial prisoner. All concerned be informed accordingly. 23. Disposed of in the aforesaid terms. 24. Detention record produced by Mr. Chashoo be returned to him by the Bench. Secretary of this Court today itself.