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2013 DIGILAW 678 (JK)

Farooq Ahmad Shah v. State

2013-11-22

MOHAMMAD YAQOOB MIR

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1. In pursuance to order No. DMS/PSA/15/2013 dated 10.09.2013, detenue, Farooq Ahmad Shah, has been taken into preventive custody by invoking powers under Section 8(a) of the J&K Public Safety Act as his activities were found to be prejudicial to the "maintenance of public order" so has been lodged in District Jail, Baramulla. Order of detention has been confirmed by the Government and period of detention has been fixed as three months as is clear from Govt. order No.Home/PB-V/1321/2013 dated 09.10.2013, which period is to expire on 09.12.2013. By the medium of instant petitions, quashment of the detention order is sought. 2. Learned counsel for the petitioner would contend that the material forming base for the grounds of detention, such as dossier and other connecting documents as reflected in the order of detention, have not been supplied to the detenue, therefore, 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. Past history and activities of the detenue have been narrated in the grounds of detention, it was imperative for the detaining authority to furnish copies of the documents so referred in the grounds of detention to the detenue. Infringement of 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. 4. 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 preventive order 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 short, an exceptional case has to be made out for passing the preventive order 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 v. 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. 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". 5. 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 in connection with case FIR No.61/2013 P/S Soura for commission of offences punishable under Section 148, 149, 307, 332, 188, 427 RPC. When bail application has not been filed, how could detaining authority record satisfaction that there is likelihood of release of the detenue on bail. In this connection, para 27 of the Rekha's case is relevant to be quoted: "27. When bail application has not been filed, how could detaining authority record satisfaction that there is likelihood of release of the detenue on bail. In this connection, para 27 of the Rekha's case is relevant to be quoted: "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". 6. In the instant case in the grounds of detention the detaining authority has categorically recorded that there is likelihood of detenue being admitted to bail when in fact no such bail application has been filed, therefore, to say there is likelihood of his release on bail is imaginary. 7. 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. 8. For the afore-stated reasons, the order of detention impugned is quashed. Detenue be released from the preventive detention forthwith provided he is not required in connection with any other case. 9. Both the two petitions shall stand accordingly disposed of. 10. Detention records, as produced, be returned to the learned counsel for the respondents.