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2016 DIGILAW 665 (JK)

Showkat Ahmad Najar v. State

2016-12-17

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Pursuant to Order No. 119/DMB/PSA/2016, dated 12.09.2016, passed by District Magistrate, Baramulla, detenue, namely, Showkat Ahmad Najar has been detained under Public Safety Act and lodged in District Jail, Kupwara. According to the learned counsel for the petitioner, the detenue was taken in custody in connection with case FIR No. 361/2016 P/S Sopore for commission offences punishable under Sections 307, 147, 148, 149, 336, 332 RPC and FIR No. 377/2016 P/S Sopore for commission of offences punishable under Sections 307, 147, 148, 149, 336, 332, 427 RPC and 3 PPD Act and while in custody has been ordered to be detained under Public Safety Act. No compelling reason has been recorded for passing the impugned order which was a requirement as the detenue was already in custody. Further, the material forming base for the detention has not been supplied to the detenue disabling him from making an effective and purposeful representation against his detention. 2. The submission has prevailing force because it is no where mentioned as to whether detenue has applied for bail or has been granted bail in any of the said cases, which shows lack application of mind. 3. It is settled that a person in custody in connection with criminal cases can be detained under the provisions of preventive law provided there are compelling circumstances for so doing otherwise the order of detention shall be bad. In this connection, it is quite apt to quote following Para from the judgment T.P. Moideen Koya v. Govt, of Kerala & Ors., reported in 2004 (8) SCC 106 : ".....in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenue was likely to be released on bail" 4. Nothing has been brought on record to show that the material forming base for the order of detention has been furnished to the detenue when the detenue admittedly was arrested in connection with aforesaid cases. The statements recorded under Section 161 Cr.P.C. in connection therewith were also required to be furnished to the detenue. Nothing has been brought on record to show that the material forming base for the order of detention has been furnished to the detenue when the detenue admittedly was arrested in connection with aforesaid cases. The statements recorded under Section 161 Cr.P.C. in connection therewith were also required to be furnished to the detenue. The non-supply of the material has disabled the detenue from making an effective representation so as to show his innocence. Non supply of material forming base for detention is violative of the right guaranteed under Article 22(5) of the Constitution. 5. It shall be quite advantageous to quote following Para from the judgment rendered in case captioned Powanammal v. State of T.N. & Anr. reported in 1999 (2) SCC 413 : "The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to the detenue. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making a representation against the order." 6. The object of passing the order of detention is to deter a person from acting in any manner prejudicial to the security of the State or public order. When the movement of the person is already under curtailment i.e. he is in custody in connection with a case, then there is no requirement of passing an order of detention unless, of course, there exist such circumstances which warrant passing of order of detention. Preventive laws have the effect of depriving a person of his liberty which is precious but deprivation thereof at times becomes indispensable. However, for justifying such deprivation, the safeguards as are provided by law are also required to be respected. A person who dares to cause any type of insecurity or threatens security of the State has to be dealt with iron hand but for so doing the Constitutional safeguards as are available are also to be respected. 7. Viewed thus, the order of detention bearing No. 119/DMB/PSA/2016, dated 12.09.2016 being unsustainable is quashed. A person who dares to cause any type of insecurity or threatens security of the State has to be dealt with iron hand but for so doing the Constitutional safeguards as are available are also to be respected. 7. Viewed thus, the order of detention bearing No. 119/DMB/PSA/2016, dated 12.09.2016 being unsustainable is quashed. Detenue shall be released from the preventive detention, however, his further custody shall be governed by the orders of the trial court as shall be passed in the aforesaid criminal cases. 8. Detention records, as produced, be returned back to learned GA. Petition succeeds as above.