Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 252 (JK)

Abdul Gani Bhat v. State

2016-05-09

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : 1. Pursuant to order No.7/DMB/PSA/2015 dated 16.12.2015, the detenue has been detained for allegedly having been indulging in the activities prejudicial to the public order. The order of detention has been confirmed and the period of detention, at the first instance, has been fixed as three months. 2. In the order dated 22.03.2016, it was observed that the period of detention has expired, therefore, petition(HCP) No.92/2015 is rendered infructuous, as such, disposed of but subsequently it has appeared that the period of detention, pursuant to Govt. order No.Home/PB-V/195/2016 dated 21.03.2016, has been extended for a further period of three months. Noticing this development, petitioner filed application for review of the order dated 22.03.2016 and also filed a separate petition registered as HCP No.54/2016 challenging the extension of order of detention. The review petition has been allowed vide order dated 5th April, 2016, as such, both the petitions have come up for hearing. 3. Contention of the learned counsel for the petitioner is that the order of detention as based on the dossier submitted by the police, same has been formulated as “grounds of detention” with small variation of words here and there. Be that as it may. Based on such grounds of detention, pursuant to order of detention dated 16.12.2015, detenue, at the first instance, was directed to remain in detention for a period of three months extendable up to one year. Subsequently on the expiry of term of three months, the period of detention has been extended pursuant to Govt. order No.Home/PB-V/195/2016 dated 21.03.2016. 4. The question which arises for consideration is as to whether extension of period of detention was permissible or not. In the grounds of detention it has been mentioned that the detenue, a businessman, has been a staunch worker of Tehreek-i-Hurriyat having affiliation with Hurriyat Conference (G-Group) and is presently District President of the group in Baramulla. Allegedly he has been exploiting the religious sentiments of the people and had forced the shopkeepers to close the shops and also pelted stones based on which case was registered against him as FIR No.267/2006. On similar allegations another case was registered against him as FIR No.301/2010 in Police Station, Sopore. He is also stated to be involved in following cases: Fir No.307/2010 U/S 307, 147, 148, 336, 427 RPC of P/S Sopore. FIR No.335/2010 U/S 307, 336, 332, 427 RPC of P/S Sopore. On similar allegations another case was registered against him as FIR No.301/2010 in Police Station, Sopore. He is also stated to be involved in following cases: Fir No.307/2010 U/S 307, 147, 148, 336, 427 RPC of P/S Sopore. FIR No.335/2010 U/S 307, 336, 332, 427 RPC of P/S Sopore. FIR No.369/2010 U/S 147, 436 RPC of P/S Sopore. FIR No.378/2010 U/S 147, 436 RPC of P/S Sopore. FIR No.323/2013 U/S 148, 149, 332 RPC of P/S Sopore. FIR No.241/2013 U/S 307, 148, 149, 427, 336 RPC of P/S Pattan. FIR No.72/2015 U/S 153-A, 504 RPC of P/S Sopore. 5. It is also mentioned that the detenue was earlier detained under Public Safety Act in the year 2011. Finally it has been mentioned that the activities of the detenue are harmful to the maintenance of public order and is threat to the peace. 6. Firstly, on the basis of earlier cases as referred to above, the detenue had been detained under Public Safety Act in the year 2011. For fresh order of detention dated 16.12.2015, what where the facts and circumstances which persuaded the detaining authority to pass such order. Earlier history has relevance to be quoted but for passing the order in the year 2015, what has been the position is that three cases i.e. FIR Nos.323/2013, 241/2013 and 72/2015 have been registered against the detenue. 7. According to learned counsel for the respondents, the past conduct has to be taken into consideration. In support thereof, has relied on the judgment Wasiuddin Ahmed Vs. District Magistrate, Aligarh UP and others reported in (1981) 4 Supreme Court Cases 521. Para 25 is relevant to be quoted: “25. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. The past conduct or antecedent history of a person can appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary.” It is true that the past conduct and antecedents are to be taken note of but when the past conduct and antecedents have been taken note of in the earlier order of detention, same position could not be taken note of for deriving satisfaction for passing the fresh order of detention as is the law laid down in the judgment captioned Chhagan Bhagwan Kahar Vs. N. L. Kalna and others ( AIR 1989 SC 1234 ). In this connection Para 12 is relevant to be quoted: “12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention, there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari, the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order. 8. In the judgment rendered in case Jahangir Khan Fazal Khan Pathan Vs. The Police Commissioner, Ahmadabad and another ( AIR 1989 SC 1812 ), it has been held as under: “……It is, therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.” 9. Again same position has been dealt with in the case Ramesh Vs. State of Gujarat ( AIR 1989 SC 1881 ). Para 10 is relevant to be quoted: “10. On a careful scrutiny of grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal case mentioned under Sr. Nos.1 and 2 of the table which where the materials in the earlier order of detention that had been quashed and that it cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenue.” 10. Detention under Public Safety Act is simply a preventive measure so as to deter a person, in the instant case from acting, in a manner prejudicial to the public order. It is not mentioned anywhere as to whether detenue had applied for bail or was released on bail in connection with the criminal cases registered against him, when according to the learned counsel for the petitioner, detenue has not been released on bail. Even if detenue would have been released on bail, what prevented the State in not filing an application before the concerned Court for cancellation thereof or opposing the bail application, if any filed. 11. Detention is linked with liberty. Liberty of a person is guaranteed under Article 21 of the Constitution. Reasonable restriction is there but for that a strong foundation has to be laid. It is only in the backdrop of the guarantee to liberty, the Jammu and Kashmir Public Safety Act was amended which earlier provided one year’s detention as against a person who would indulge in the activities prejudicial to the public order. After amendment the position has been changed. At the first instance, the detention is permissible only for three months though same is extendable but for that cogent and substantial grounds must exist which would reveal that even after detention links and connections of the detenue have been such which have given rise to observe that his acts are prejudicial to the public order. Nothing in that direction has been brought on record except a reference to the letter No.CID/BR/02-A/2015/Sgr/430-32 dated 01.03.2016 from IGP, CID. 12. Nothing in that direction has been brought on record except a reference to the letter No.CID/BR/02-A/2015/Sgr/430-32 dated 01.03.2016 from IGP, CID. 12. The said letter has neither been filed nor is available on the detention records as produced by the counsel for the respondents. That apart, a very strange situation has emerged i.e. order of extension of detention bearing No.Home/PB-V/195/2016 dated 21.03.2016 has been passed by the Government so it was Secretary to Govt. Home Department to file counter affidavit to justify the extension of the order of detention. Instead District Magistrate, Baramulla, has filed the counter affidavit noticing therein all the facts as mentioned in the grounds of detention which formed base for the earlier order of detention. 13. In Para 12 of the counter affidavit it is stated by District Magistrate, Baramulla, “the order has been passed by the Government after proper exercise and after receiving recommendation for extension from IGP, CID, vide letter No. CID/BR/02-A/2015/Sgr/430-32 dated 01.03.2016, the said order is well founded and well reasoned and has been passed in accordance with law, as such, is legally tenable”. It is quite strange that District Magistrate has observed that the government has passed a well founded and well reasoned order. What was required is that the respondent-authorities, particularly Home Department, were required to justify extension of detention. This strange position is further compounded by the fact that the detention record as available with the District Magistrate and produced by learned GA even does not contain the letter of CID based on which extension of detention has been granted which, in itself, shows as to how the matter has been dealt with. 14. Learned counsel for the petitioner raised number of other valid grounds but since extension of detention does not survive on the aforesaid ground, therefore, there is no requirement to deal with other grounds as raised. 15. In the backdrop of the factual and legal position as noticed above, only conclusion in-keeping therewith is that the order of detention and extension order respectively bearing No. 7/DMB/PSA/2015 dated 16.12.2015 and Home/PB-V/195/2016 dated 21.03.2016 are unsustainable so are quashed. Custody of the detenue shall be governed in accordance with the orders of the court of competent jurisdiction dealing with the criminal cases as registered against him. 16. Both the petitions succeed, so shall stand, accordingly, disposed of. 17. Custody of the detenue shall be governed in accordance with the orders of the court of competent jurisdiction dealing with the criminal cases as registered against him. 16. Both the petitions succeed, so shall stand, accordingly, disposed of. 17. Detention records as produced be returned to the learned counsel for the respondents.