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2013 DIGILAW 693 (JK)

Mushtaq Ahmad Ganai v. State

2013-11-29

BANSI LAL BHAT

body2013
1. Through the medium of instant Habeas Corpus Petition, detenue -- Mushtaq Ahmad Ganai @ Niyama seeks quashment of detention order No. DMB/ PSA/ 08 of 2013 dated 17.09.2013 which has been slapped upon him by District Magistrate Budgam invoking powers under Section 8 of the Jammu and Kashmir Public Safety Act as his activities were found to be "prejudicial to the maintenance of public order". The detenue stands lodged in Central Jail -- Srinagar. 2. Respondents have filed counter resisting the petition on the ground that in view of the activities of the detenue, the impugned detention order was passed on application of mind and the grounds of detention were served upon the detenue along with communication dated 17.09.2013 where under he was made known about the preventive detention and of his right to file representation to Government against his detention. 3. On perusal of the grounds of detention, it comes to fore that the detenue is alleged to be a known miscreant of Harpora Galwanpora Budgam and a prime instigator, instigating the youth of Budgam to indulge in illegal activities against a minority sect of Muslims thereby creating feelings of enmity and disharmony on sectarian grounds. Cases under FIR Nos. 237/2013 under Sections 147, 148, 149, 505(2), 336, 427, 506 RPC and 256/2013 under Sections 147, 148, 149, 336, 427, 505(2) RPC are said to have been registered against the detenue and his associates at Police Station Budgam in regard to such illegal activities which disturbed public order. It further emerges from the grounds of detention that despite invoking of normal law against the detenue, the desired results were not yielded. It is stated in the grounds of detention that the detenue was already in custody and he had moved an application for bail. The detaining Authority was apprehensive that in the event of detenue being enlarged on bail, he would indulge in the activities creating sectarian disharmony. Therefore, in order to stop the detenue from indulging in activities which are "prejudicial to the maintenance of public order", his detention under the Jammu and Kashmir Public Safety Act was imperative. 4. The detaining Authority was apprehensive that in the event of detenue being enlarged on bail, he would indulge in the activities creating sectarian disharmony. Therefore, in order to stop the detenue from indulging in activities which are "prejudicial to the maintenance of public order", his detention under the Jammu and Kashmir Public Safety Act was imperative. 4. Learned counsel for petitioner contended that the material forming the basis for grounds of detention including the copy of letter dated 16.09.2013 and the material produced by respondent no.3 before respondent no.2 has not been supplied to the detenue by respondent no.2 to enable him to make an effective representation against the order of detention. Information given to father of detenue, who was already dead that the detenue could make a representation to the detaining Authority, was of no consequence. This demonstrated total non - application of mind on the part of respondent no.2 in detaining the detenue and addressing letter dated 17.09.2013 to a dead person. Thus, it is contended, the right guaranteed under Article 22(5) of the Constitution of India stands infringed. 5. It is further contended on behalf of detenue that the detenue was granted bail in FIR No. 237/2013 on 04.09.2013 and in FIR No. 256.2013 on 19.09.2013 by Sessions Judge, Budgam. Thus, it is contended, the detaining Authority has passed the order of detention with eyes shut. It is further contended that the grounds of detention are vague, uncertain and ambiguous and it was not possible for the detenue to make an effective representation on the basis of such grounds of detention. 6. The grounds of detention give a narrative of the activities and previous history of the detenue. However, it was imperative for detaining authority to furnish copies of such documents to the detenue for making an effective representation. Non furnishing of copies of such documents to the detenue results in infringement of his right to make an effective representation as guaranteed under Article 22(5) of the Constitution of India. Same renders the order of detention as illegal. 7. Non furnishing of copies of such documents to the detenue results in infringement of his right to make an effective representation as guaranteed under Article 22(5) of the Constitution of India. Same renders the order of detention as illegal. 7. Article 22(3)(b) of the Constitution of India which carves out an exception to Article 21 of the Constitution of India guaranting right to liberty, authorizes the concerned authorities to pass orders in the nature of preventive detention but while passing such orders, authority concerned has to be alive to the mandate of Article 21 protecting personal liberty of a person. Such power is required to be exercised in a manner, which does not have the trappings of depriving a person of the liberty guaranteed by the Constitution of India. An exceptional case has to be carved out justifying preventive order. Procedural safeguards have to be observed. A detenue can claim prejudice, if procedural safeguards are not adhered to. He can claim that his liberty had been curtailed de hors the law. Law laid down by Hon'ble Apex Court in "Rekha v. State of Tamil Nadu and anr." reported in (2011) 5 SCC 244 fortifies this view. 8. In "Ghulam Nabi Shah v. State of J&K and Ors." reported in 2005 (1) SLJ 251 : 2004 (2) JKJ HC-565, this Court relied upon the earlier judgment of this Court delivered in "Ghulam Nabi Dar v. State of J&K and ors." reported in 2002 KLJ 637 JKJ Soft JKJ/12531 to repel the argument that preventive detention could be ordered on the ground that ordinary law of the land was not enough as corrective measure. It was held; "The compelling reasons spelled out by the detaining authority are, that ordinary criminal law is not enough to prevent detenue from such subversive activities. Similar proposition of law was also in HCP No. 97/2000 titled Bilal Ahmad Bhat v. State and ors. wherein while dealing with it, satisfaction and the reasons disclosed by the detaining authority while directing the preventive detention of the detenue is that the ordinary law of the land is not sufficient to deter the detenue from his activities. This cannot be accepted either as a ground of detention. wherein while dealing with it, satisfaction and the reasons disclosed by the detaining authority while directing the preventive detention of the detenue is that the ordinary law of the land is not sufficient to deter the detenue from his activities. This cannot be accepted either as a ground of detention. While dealing with similar proposition on facts and law, the Supreme Court in "Surya Prakash Sharma v. State of U.P. reported in 1994 SCC (Cri) 169 in para 5 has held that: The question as to whether and in what circumstances an order for preventing detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came for consideration before a Constitution Bench in "Rameshwar Shaw v. District Magistrate, Burdan. To eschew prolixity we refrain from dealing all those cases except that Dharmendra Suganchand Chelwat v. Union of India wherein three Judge Bench, after considering all the earlier relevant directions including Rameshwar Shaw answered the question in the following words: The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose must show that: (i) the detaining authority was aware of the fact that the detenue was already in detention and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression "compelling reasons" (a) the detenue is likely to be released from custody in the near future and (b) that it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. The detaining authority has to disclose the compelling reasons if the reasons are not disclosed the impugned order suffers for non-application of mind. Grounds of detention indicate the awareness of the detaining authority that the detenue was in custody of the respondent any cogent material that ordinary law of the land is not sufficient to deter the detenue from such activities. Such subjective satisfaction of the detaining authority cannot, therefore, be said to be proper and justified." 9. Grounds of detention indicate the awareness of the detaining authority that the detenue was in custody of the respondent any cogent material that ordinary law of the land is not sufficient to deter the detenue from such activities. Such subjective satisfaction of the detaining authority cannot, therefore, be said to be proper and justified." 9. Respondents have not produced any material demonstrating any compelling reasons justifying detention of petitioner despite the fact that he was already in custody in one case whereas he was on bail in another case. Satisfaction arrived at in these circumstances, in my considered opinion, cannot be said to be proper and justified. It is not shown how the ordinary law of the land was not sufficient to deal with the detenue. The detention order deserves to be quashed on this ground. 10. Admittedly, detenue was on bail in one of the FIRs on the date, the impugned detention order came to be passed. The detaining Authority, on the face of it, was not made aware of the fact that the detenue was enlarged on bail in one case. This fact reveals total absence of application of mind on part of detaining Authority which renders the detention order void. I am fortified in my view by the law laid down by the Hon'ble Apex Court in "Anant Sakharam Raut v. State of Maharashtra and anr." reported in AIR 1987 SC 137 . 11. In view of the facts attending upon this case and the legal position discussed hereinabove, the impugned order of detention is held to be unsustainable. Same deserves to be quashed. 12. For the aforesaid reasons, impugned detention order dated 17.09.2013 is quashed and the detenue is ordered to be released from preventive custody forthwith unless required in connection with some other case. 13. Disposed of.