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2017 DIGILAW 949 (JK)

Gulzar Ahmad Bhat v. State

2017-10-23

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2017
JUDGMENT : D.S. Thakur, J This Letters Patent Appeal has been preferred against the judgment and order dated 3.8.2017 passed in Habeas Corpus Petition No. 13/2017 whereby the writ petition filed by the petitioner/appellant herein has been dismissed. 2. Briefly stated the material facts are as under: 3. A Habeas Corpus Petition came to be filed by the petitioner, challenging the order dated 8.3.2017 passed by the District Magistrate, Budgam, Srinagar in terms of Section 8 of the J&K Public Safety Act, 1978 with a view to ensure maintenance of public order”. The writ court, however, upheld the order of detention and dismissed the petition. 4. One of the main grounds on which the order impugned had been questioned was on the ground of non-application of mind. It had been urged that the order passed by the District Magistrate was nothing but a verbatim reproduction of the police dossier prepared by the Senior Superintendent of Police, Budgam. 5. It was also urged that the order impugned did not in so many words say that the preventive detention had been ordered with a view to prevent the petitioner from indulging and acting in a manner prejudicial to the maintenance of public order. 6. Heard learned counsel for the parties. 7. A perusal of the order passed by the District Magistrate clearly goes to suggest that the same is indeed nothing but a verbatim reproduction of the police dossier prepared by the Senior Superintendent of Police, District Budgam. The District Magistrate has only substituted the phrase the subject” with the words you and your” at appropriate places. Apart from this, on a reading of the order passed by the District Magistrate, it appears that there were allegations against the petitioner to the extent that he had raped four girls in his institute running by the name and style of Syed Noorain Fatima-Ul-Zuhra in regard to which an FIR No. 40/2013 under section 376 Ranbir Penal code was registered against him in police station, Khansahib, which ultimately led to his acquittal on certain technical grounds. 8. 8. The order impugned further states that the people living in the Kashmir valley being hypersensitive reacted sharply to the immoral activity in which the petitioner was involved and, therefore, keeping in view the sensitivity of the matter, if the petitioner was released from custody, there was every likelihood that there would be a breach of public order in District Budgam, which could result in a serious law and order problem. 9. The order further proceeds to state that the petitioner was released from custody in connection with the aforementioned FIR and on his release, the victims protested against the said release along with the public at large and a massive protest was staged in District Budgam and as such, there was a breach of public order. 10. The order further states that various separatists and anti-national organizations always looked for such opportunities where they could exploit the sentiments of the common masses and provoke them to violence. It was further stated that looking into the resentment of the public, the Executive Magistrate, Khan Sahib earlier issued an order under section 107 of the CrPC against the petitioner and during the course of execution of the said order, the petitioner along with his accomplices had resorted to violence leading to breach of public peace and order. The order finally ends with the following conclusion: Now therefore, it becomes imperative to detain you under the provisions of public safety act so as to ensure maintenance public order in the whole valley particularly in district Budgam. 11. From a reading of the aforementioned order, it becomes clear that the order does not suggest that the petitioner was being detained with a view to prevent him from indulging in activities, which could be prejudicial to the maintenance of public order and that in case, he was not so detained, there was apprehension that the activities in which he was indulging in the past would be repeated by him. On the other hand, the order impugned has been passed only with a view to prevent the consequences i.e. public protests and exploitation of the issue by the separatists. Clearly, this cannot at all be a ground for detention. The petitioner cannot be deprived of his personal liberty only because somebody else would raise a protest and exploit the issue arising on account of his release. Clearly, this cannot at all be a ground for detention. The petitioner cannot be deprived of his personal liberty only because somebody else would raise a protest and exploit the issue arising on account of his release. This would clearly be a misuse of the provisions of the Public Safety Act. In our view, this ground alone was sufficient to have the order of detention quashed 12. In similar circumstances, the Apex Court in Jai Singh and Ors. Vs. State of Jammu and Kashmir, AIR 1985 SC 764 was seized of the matter where the order of detention was a verbatim reproduction of the police dossier. The court held: First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited “The subject is an important member of....” Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words “the subject is” into “you Jai Singh, s/o Ram Singh, resident of village Bharakh, Tensil Reasi”. Thereafter word for word the police dossier is repeated and the word “he” wherever it occurs referring to Jai Singh in the dossier is changed into 'you' in, the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner.. 13. This court in Naba Lone Vs. District Magistrate 1988 SLJ 300 and Noor-ud-Din Shah Vs. State of J&K and Ors. 1989 SLJ 1, quashed the order of detention on similar grounds following the principles laid down in Jai Singhs Case (Supra). 14. 13. This court in Naba Lone Vs. District Magistrate 1988 SLJ 300 and Noor-ud-Din Shah Vs. State of J&K and Ors. 1989 SLJ 1, quashed the order of detention on similar grounds following the principles laid down in Jai Singhs Case (Supra). 14. Reference made to the protests and violence resorted to by the petitioner and his accomplices to prevent the execution of the order passed earlier by the Executive Magistrate u/s 107 CrPC is just a passing reference and does not at all form the basis of the order impugned. 15. The view expressed by the learned single judge that the subjective satisfaction of the detaining authority had not been arrived at wrongly and that the nature and gravity of the accusation against the petitioner was sufficient to justify his detention, in our opinion, is legally erroneous. 16. For the reasons mentioned above, the order of detention is quashed. The petitioner is directed to be released forthwith if otherwise not detained in any other case.