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2017 DIGILAW 200 (JK)

Tariq Ahmad Dar v. State of J&K

2017-04-18

DHIRAJ SINGH THAKUR

body2017
Judgment 1. The present Habeas Corpus Petition has been filed, challenging the order of detention’ dated 22.12.2016 issued by the District Magistrate, Baramulla, who, in purported exercise of his powers vested in him under Section 8(a) of the Jammu and Kashmir Public Safety Act, 1978 (for short, ‘Act of 1978’), has ordered the detention of the petitioner with a view to prevent him from indulging in such activities, which disturb the peace and public order. The said order of detention was subsequently extended vide Govt. Order dated 22.3.2017. 2. The basis of challenge in the present petition is the violation of the procedural safeguards in terms of the Act of 1978 as also Article 22(5) of the Constitution of India as interpreted by the Apex Court in various judgments. 3. It was further urged that the order impugned suffered from total non -application of mind inasmuch as the petitioner was already under arrest in FIR No. 332/2016 for offences under Sections 307, 148, 149, 336, 353 RPC as also FIR No. 342/2016 under Sections 307, 148, 149,336, 332, 353 RPC and in those circumstances, there was no occasion for the official respondents to issue the order impugned, ordering the detention of the petitioner. 4. In the reply affidavit, the respondents have given details of how the activities of the petitioner pose a threat to the peace and public order. The details of his involvement in as many as nine FIRs have been elaborately explained. 5. It was stated that all the procedural safeguards as were required to be followed had been meticulously followed and there was no violation thereof. 6. From the records, it appears that the order of detention as also the grounds of detention along with the relevant material, in all, totaling 28 leaves, had been handed over to the petitioner for which signatures of the petitioner were obtained on the execution report prepared by ASI Ghulam Ahmad from Police Line, Baramulla. The details of various documents including the copies of various FIRs, reference whereof has been made in the grounds of detention, also appear to have been supplied to the petitioner. Receipt also appears to have been obtained from the petitioner, which would reflect that the documents were read-over and explained to him in Urdu and Kashmiri Language, which the petitioner is stated to understand. 7. Receipt also appears to have been obtained from the petitioner, which would reflect that the documents were read-over and explained to him in Urdu and Kashmiri Language, which the petitioner is stated to understand. 7. The procedural requirement of supplying of the communication of the order of detention, grounds of detention and the relevant material, therefore, appears to have been complied with. 8. A perusal of the record would show that in the grounds of detention, the detaining authority was aware of the fact of the petitioner’s arrest at the time of passing of the order of detention but at the same time, the detaining authority had also recorded its satisfaction that the petitioner had been released on bail in connection with FIR No. 332/2016 by the competent court. The satisfaction recorded by the detaining authority is as follows:— “Your activities came to an end when you were arrested on 17.11.2016 in connection with investigation of case FIR No. 332/2016 U/Ss 307, 148, 149, 336, 353 RPC which was registered against you in P/S Baramulla on 18.10.2016. Subsequently, you are admitted on bail in relation to aforesaid case by the competent court. You are presently arrested in case FIR No. 178/2016 U/Ss 147, 148, 149, 336, 332, 307, 353 RPC of Police Station Barmulla, when you along with associates while leading an unruly mob, attacked the police party at Cement Bridge Baramulla and pelted stones upon them, resulting which various police/security personnel got seriously injured. Though you are presently arrested in aforesaid case, but there is likelihood of you being admitted to bail and in case you get released at this stage there is well founded apprehension that you shall again indulge in similar activities which are prejudicial to the maintenance of public order…” 9. From the above, it is clear that the detaining authority had expressed the apprehension that the petitioner would be released on bail as he was released for earlier offences registered under FIR No. 332/2016. 10. What is important to note here is the fact that the offences, for which FIR No. 332/2016 was registered in which the petitioner was accused, are materially the same as offences in FIR No. 178/2016. The apprehension of the detaining authority that the petitioner was likely to be released on bail, in those circumstances, cannot be said to be misplaced or not constituting cogent material. 11. The apprehension of the detaining authority that the petitioner was likely to be released on bail, in those circumstances, cannot be said to be misplaced or not constituting cogent material. 11. The question that arises for consideration is as to what was the material available before the detaining authority to come to a conclusion that there was a likelihood of the petitioner being released on bail. 12. The Apex court in Binod Singh vs. District Magistrate Dhanbad. (1986) 4 SCC 416 held that if a person was in custody and there was no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. It was further held that there must be cogent materials before the officer passing the order of detention that the detenue was likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention” 13. In Surya Prakash Sharma v. State of U.P reported in 1994 Supp @) 195, the Apex court in paragraph 5 held as under:— “5. The question as to whether and in what circumstances an order for preventive 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 up for consideration before a Constitution Bench in “Rameshwar Shaw v. District Magistrate, Burdwan. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat v. Union of India wherein a three judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words:— “The decisions 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 detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future; and (b) taking into account the nature of the antecedent activities of the detenu, 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.” 14. In Amritlal and others vs. Union Government through Secretary, Ministry of Finance and Others, AIR 2000 SC 3675 , the Apex Court was dealing with an order of detention passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 where the detaining authority had recorded a satisfaction to the extent that even though prosecution proceedings under NDPS Act, 1985 had been initiated ‘against the petitioner, he was satisfied that there was every likelihood of his moving an application for bail and in the event of his being granted bail, there was a likelihood of his indulging in illicit traffic in narcotic drugs and thus detained him under the Prevention of Illicit Traffic In Narcotic Drugs and Psychotropic Substances Act, 1988. 15. The Apex Court In Amritlal’s case (supra), however, held that the reasoning given by the detaining authority was not sufficient compliance with the requirements of law and that the ‘likelihood of his moving an application for bail’ was different from ‘likelihood to be released on bail’. What the Apex Court held in Judgment supra is reproduced hereunder:— “6. The requirement as noticed above in Binod Singh’s case ( AIR 1986 SC 2090 : 1986 Cri LJ (supra) that there is ‘likelihood of the petitioners being released on bail’ that however is not available in the reasonings as provided by the concerned officer. The reasoning available is the ‘likelihood of his moving an application for bail’ which is different from ‘likelihood to be released on bail’. This reasoning in our view is not sufficient with the requirements as laid down.” “7. The reasoning available is the ‘likelihood of his moving an application for bail’ which is different from ‘likelihood to be released on bail’. This reasoning in our view is not sufficient with the requirements as laid down.” “7. The emphasis however, in Binod Singh’s case (supra) that before passing the detention order the concerned authority must satisfy himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material. Available cogent material is the likelihood of having a bail application moved in the matter but not obtaining a bail order.” 16. What then would constitute ‘cogent material’ by the detaining authority to justify the issuance of a detention order in a case where the person is already arrested. As held in Amritlal’s case supra, likelihood of moving a bail application would not constitute a cogent ground but, in my opinion, if an application for bail is, in fact, moved then certainly the same would constitute cogent material before the detaining authority. Not only this, even in a case where the petitioner is under arrest for offences, which are materially similar in nature to be ones in regard to which the accused has obtained a bail order, the detaining authority would be justified in entertaining the apprehension that just as the accused had obtained an order of bail in the previous case, there was a likelihood of the accused being granted bail in that case in which he is stated to have been under arrest at the relevant time, justifying the issuance of an order of detention. Although one may. argue that the mere fact that a bail application is moved would not necessarily result in an order granting bail, yet in every such case where an application is moved, there IS likelihood of the accused being released on bail. What is required to be appreciated is the fact that a detaining authority cannot wait to pass an order of preventive detention till after the court has actually granted bail, for it may by then be too late and the accused may already be on his way to repeat the offence which is sought to be prevented by the order of detention. 17. The Apex Court in Union of India and Ors. 17. The Apex Court in Union of India and Ors. v. Arvind Shergill and Anr, (2000) 7 SCC 601 , held that action by way of preventive detention was largely based on suspicion and the court was not an appropriate forum to investigate whether the circumstances of suspicion exist, warranting the restraint on a person and further that since the responsibility for making a detention order rests with the detaining authority, it would be a serious derogation from responsibility if the court substitutes its judgments for the satisfaction of that authority on an investigation undertaken regarding sufficiency of the material on which such satisfaction was recorded. It was held that the satisfaction was’ subjective in nature and if based on relevant grounds, cannot be said to be invalid. 18. In view of the above, in my opinion, the order impugned cannot be said to be one, suffering from non-application of mind nor can it be said that there were no compelling reasons, justifying the detention of the petitioner, despite the fact that the detenue was already in detention. 19. For the reasons mentioned above, the petition is found to be without any merit and is accordingly dismissed. 20. The detention record be returned to the learned counsel ‘for the respondents against proper receipt.