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2018 DIGILAW 262 (JK)

Arizoo Bashir Najar v. State of J&K

2018-05-04

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : 1. Impugned is the order of detention bearing No.18/DMP/PSA/17 dated 21.11.2017, passed by District Magistrate, Pulwama, in terms whereof, detenue has been taken into preventive custody and lodged in District Jail, Kathua. By now detenue is in preventive custody for last more than five months. 2. Learned counsel for the petitioner would contend that the detenue was already in custody in connection with FIR No.71/2017 under Section 302 RPC, 7/27 Arms Act, 18 & 20 ULA(P) Act, FIR No.76/2017 under Section 302 RPC, 7/27 Arms Act, 18 & 20 ULA(P) Act, FIR No.78/2017 under Section 302, 307 RPC and 7/27 Arms Act and FIR No.81/2017 under Section 18 and 20 ULA(P)Act and 3/5 Explosive Substances Act, he had not applied for bail nor bail was granted because offence punishable under Section 302 RPC carries capital punishment. No compelling reasons have been recorded nor was available for passing the order of detention. 3. It is settled that a person involved in criminal cases can be detained under the provisions of preventive laws 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 vs. Government of Kerala and 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” (1) Next learned counsel for the petitioner contended that the detenue has been informed to make representation to the government but has not been informed that he can make a representation before the detaining authority, which is an infringement of a valuable right. (2) Perusal of the records reveal that vide communication dated 21.11.2017, issued by District Magistrate, Pulwama, detenue has been informed to make a presentation to the Government, so clearly he has not been asked to make a representation before the District Magistrate (Detaining Authority). The position has already settled i.e. when there is such a breach of right, the order of detention becomes unsustainable. The position has already settled i.e. when there is such a breach of right, the order of detention becomes unsustainable. (3) In the judgment rendered by the Hon’ble Apex Court in “State of Maharashtra and others v. Santosh Shankar Acharya” ( AIR 2000 SC 2504 ), it has been held that “detenue will have a right to make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenue that he has a right to make representation to the Detaining Authority, would constitute an infraction of the valuable Constitutional right guaranteed to the detenue under Article 22(5) of the Constitution and such failure would make the order of detention invalid.” 4. Next it is contended that there has been none application of mind on the part of detaining authority as the grounds of detention appear not to have been formulated by the detaining authority 5. The submission, on perusal of records, appears to have substance. One of the requirements for deriving subjective satisfaction is to formulate the grounds of detention which shall form basis for passing the order of detention. In the order impugned as passed by District Magistrate, it is recorded; “Whereas on the basis of dossier placed before me by the Superintendent of Police, Awantipora, vide his No. Conf/PSA/2017/13418-21 dated 08.11.2017, I am satisfied…..”, which shows that Detaining Authority has not sifted the material himself for preparation of the grounds of detention. Non-application of mind is clear, therefore, an invasion to personal liberty was impermissible. 6. Right to liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 22(3) (b) of the Constitution, which is an exception to Article 21 of the Constitution. The said exception authorizes the concerned authorities to pass preventive detention but while passing such orders, the authority concerned is required to be alive to the personal liberty of a person. Such power has to be exercised in a manner, which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order, still then procedural safeguards are to be adhered. Such power has to be exercised in a manner, which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order, still then procedural safeguards are to be adhered. Breach in observing the procedural safeguards gives right to the detenue to claim that he has been prejudiced as his liberty has been curtailed de horse the law. In this view, I am fortified by the judgment rendered by a Bench of three Hon’ble Judges of the Hon’ble Apex Court in case captioned Rekha Vs. State of Tamil Nadu and Anr., reported in (2011) 5 SCC 244 . 7. The cumulative effect of the aforesaid position leads to the only one conclusion i.e. the order of detention impugned is not valid, as such, quashed. Further custody of the detenue shall be governed by the orders as shall be passed by the Court of competent jurisdiction relatable to the criminal cases as registered against him. 8. Disposed of as above.