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2017 DIGILAW 958 (JK)

Masarat Alam Bhat v. State of J&K

2017-10-26

ALOK ARADHE

body2017
JUDGMENT : Heard. 2. In this petition, the petitioner has, inter alia, assailed the validity of order of detention dated 08.05.2017 under the provisions of J&K Public Safety Act, 1978, (hereinafter referred to as “the Act”), by which the detenu has been detained under the aforesaid Act. 3. The facts giving rise to filing of the petition, briefly stated, are that initially the order of detention was passed against detenu on 28.04.2007, under the provisions of the Act, which was challenged by the petitioner in HCP no.108/2007, which was allowed by a Bench of this Court on 01.10.2007. Thereafter on 09.09.2008, the order of detention was passed under the Act, which was challenged by petitioner in HCP no.223/2008, which was allowed by a Bench of this Court vide order dated 27.12.2008. It is the case of petitioner that instead of releasing the detenu, once again the order of detention was passed on 12.09.2009, which was once again quashed by a Bench of this court. However, detenu was again detained by order dated 11.12.2010, which was challenged by petitioner in HCP no. 49/2011, which was allowed vide order dated 10.06.2011. By order of detention dated 04.08.2011, the detenu was again detained. The aforesaid order of detention was challenged by the petitioner in HCP no.304/2011, which was quashed by a Bench of this Court vide order 23.12.2011. 4. The detenu was once again detained vide order dated 30.12.2011 under the provisions of the Act. The aforesaid order of detention was subject of challenge in HCP no.05/2012, which was decided vide order dated 02.06.2012. However, again on 03.08.2012, an order of detention was passed, which was again quashed by a Bench of this court on 19.10.2012 passed in HC(W) no.112/2012. Thereafter on 30.10.2012, again the detenu was detained under the provisions of the Act. The aforesaid order was revoked by the State Government vide order dated 18.03.2013. 5. Thereafter once again on 21.04.2015, order of detention was passed against the detenu, which was subject matter of challenge in HCP no.32/2015, which was allowed by a Bench of this Court vide order dated 21.08.2015. However, instead of releasing the detenu, he was again detained by order dated 01.09.2015, which was challenged by him in HCP no.64/2015. The aforesaid detention order was quashed by a Bench of this Court vide order dated 29.12.2015. However, instead of releasing the detenu, he was again detained by order dated 01.09.2015, which was challenged by him in HCP no.64/2015. The aforesaid detention order was quashed by a Bench of this Court vide order dated 29.12.2015. Thereafter again, on 01.09.2016, the order of detention was passed, which was challenged by the petitioner in HC(P) no. 395/2016, which was allowed by a Bench of this Court vide order dated 27.12.2016. However, instead of releasing the detenu, once again order of detention dated 08.05.2017 has been passed. In the aforesaid background, the petitioner has approached this Court. 6. Learned counsel for petitioner submits that the detenu has not been apprised of his right to make a representation to the detaining authority, therefore, the order is vitiated in law. It is also submitted that since the detenu, at the time of passing of the order of detention, was already in custody, therefore, there has to be some fresh facts in existence before the authorities to enable them to pass the order of detention. It is also submitted that the grounds of detention are vague inasmuch as names of antinational elements as well as the date, month or even year, when the detenu allegedly met them, have not been mentioned in the grounds of detention. It is also pointed out that even particulars of inmates of the jail have not been given, who are alleged to have been influenced by him to take part in antinational activities. It is also submitted that order of detention has been passed on stale grounds and in respect of incident, which has taken place in 2016, FIR has already been lodged vide FIR no.258/2016. It is also submitted that the conduct of the detenu during custody cannot form basis for passing of order of detention. In support of his submission, learned counsel for petitioner has referred to the decision of the Supreme Court in the case of Kshetra Gogoi v. The State of Assam AIR 1970 SC 1664 ; V. Shantha v. State of Telangana and others AIR 2017 SC 2625 ; Sama Aruna v. State of Telangana and another AIR 2017 SC 2662 . 7. 7. On the other hand, learned counsel for respondents has supported the order of detention and has submitted that the order of detention can also be passed when the person is in custody, provided there is apprehension that he may disturb the public order. In support of his submissions, learned counsel has referred to the decisions of the Supreme Court in Haradhan Saha v. State of West Bengal & ors (1975) 3 SCC 198 ; Union of India & ors v. Arvind Shergill & anr AIR 2000 SC 2924 ; and The Secretary to Government v. Nabila (2015) 12 SCC 127 . It is also submitted that the decision relied upon by the learned counsel for petitioner in the case of V. Shanta (supra) has no application to the facts of the case and similarly the decision in case of Kshetra Gogoi (supra), does not apply to the fact situation of the case. 8. Though many a grounds have been raised by learned counsel for parties, however, the order of detention passed against the detenu cannot sustain in the eye of law in view of law laid down by the Division Bench of this Court in LPAHC no. 43/2017 titled Tariq Ahmad Dar v. State of J&K & Ors, decided on 9th June 2017. It has been held by the Division Bench at paragraph 15: “15. From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention.” 9. From the perusal of order of detention it is evident that the detenu has not been apprised of his right to make a representation to the detaining authority. Therefore, it is not necessary for this Court to delve on the other arguments raised by the learned counsel for petitioner. Accordingly the detention order no. 25/DMB/PSA/2017 dated 08.05.2017 is quashed and the detenu be set at liberty forth with, if not required in any other offence. Accordingly, the petition is disposed of.