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2018 DIGILAW 365 (JK)

Shahid Ahmad Wani v. State of JK

2018-06-01

M.K.HANJURA

body2018
JUDGMENT : 1. By the dint of the order bearing No. 116/DMS/PSA/2018 dated 15th of February, 2018, passed by the Respondent No.2/District Magistrate, Shopian, in exercise of the powers conferred in him under clause (a) of Section 8 of the J&K Public Safety Act, 1978 (for short “The Act of 1978”), one Shahid Ahmad Wani S/o Ghulam Ahmad Wani R/o Kanigam, District Shopian, has been detained and lodged in District Jail, Kupwara. 2. The detenue has challenged the said order of detention, chiefly, on the grounds that the detaining authority has failed to apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his custody in a substantive offence. The detenue had filed a bail application in case FIR No. 50/2017 and case FIR No.52/2017, registered at Police Station, Zainapora, which were allowed by the Court of competent jurisdiction. To this, it has been added, that the Respondent No. 2 has passed the order of detention on the dictates of the sponsoring agency, i.e. the Officer who has prepared the police dossier and no attempt has been made by the Respondent No.2 to scan and evaluate it before passing the order of detention. 3. Counter has been filed by the Respondents, wherein it is stated that the detaining authority has complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue has failed to avail the remedy prescribed under the Act. He has not filed the representation against the order of detention. It has also been stated that the detenue is involved in FIR No. 52/2017, registered at Police Station, Zainapora, for the commission of offences punishable under Sections 7/25 Arms, 18, 38, 21 of the ULA(P) Act and case FIR No. 50/2017, registered at the same Police Station, for the commission of offences punishable under Sections 7/27 Arms Act, 16 ULA(P) Act. In the end, it has been urged that since the order of detention has been passed on justifiable grounds, therefore, the instant Habeas Corpus petition merits dismissal, and it may, accordingly, be dismissed. 4. Heard and considered. 5. In the end, it has been urged that since the order of detention has been passed on justifiable grounds, therefore, the instant Habeas Corpus petition merits dismissal, and it may, accordingly, be dismissed. 4. Heard and considered. 5. The main plank of the argument of the learned counsel for the detenue is that since the detenue was admitted to bail in case FIR No.52/2017 and case FIR No. 50/2017 by the Court of competent jurisdiction, that formed the baseline of the order of the detention, therefore, the detenue could not have been detained under the provisions of “The Act of 1978”. Testing this argument on the touchstone of the law laid down by the Apex Court of the country in paragraph No.24 of the judgment delivered in the case of “Sama Aruna v. State of Telangana & Anr.”, reported in “ AIR 2017 SC 2662 ”, such a view is not supported by the law. Paragraph No.24 of the said judgment reads as under: “24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 6. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 6. The same view has been repeated and reiterated by the Hon’ble Supreme Court at paragraph No. 13 of the judgment delivered in the case of “V. Shantha v. State of Telangana & others”, reported in “ AIR 2017 SC 2625 ”, that reads as under: “13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a “goonda” affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act.” 7. Looking at the instant case on the parameters of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of “The Act of 1978”, when he was already admitted to bail in the cases, the details whereof have been given hereinbefore. The State could have exercised its right to knock at the doors of a higher forum and seek the reversal of the order(s) of bail so granted to the detenue by the Court. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively, when he was already admitted to bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land. 8. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively, when he was already admitted to bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land. 8. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law. 9. In the backdrop of what has been said and done above, the instant Habeas Corpus petition is allowed, as a consequence of which, the order of detention bearing No. 116/DMS/PSA/2018 dated 15th of February, 2018, passed by the Respondent No.2/District Magistrate, Shopian, as extended vide Government order No. Home/PB-V/289 of 2018 dated 13th of March, 2018, is quashed with a further direction to the respondents to release the person of Shahid Ahmad Wani S/o Ghulam Ahmad Wani R/o Kanigam, District Shopian, forthwith from the preventive custody, if not required in any other case. 10. The record, as produced by the learned Additional Advocate General, be returned to him with utmost dispatch.