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2018 DIGILAW 373 (JK)

Mohammad Afzal Bhat v. State of J&K

2018-06-04

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. This Habeas Corpus Petition, challenges and seeks quashing of order No. 167/DMB/PSA/2018 dated 27.01.2018 passed by the District Magistrate, Baramulla, herein respondent No. 2, whereby the petitioner has been detained in preventive detention under section 8(a) of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act). 2. The impugned order has been challenged on various grounds. It is contended that the petitioner was earlier arrested and detained in preventive detention in terms of order No. 87/DMB/PSA/2016 dated 03.09.2016. This order was quashed by this Court in HCP No. 482/2016 dated 05.05.2017. The petitioner, however, was not released and was detained again vide order No. 76/DMB/PSA/2017 dated 22.07.2017. This order was quashed by this Court in HCP No. 266/2017 vide judgment dated 08.11.2017. This time also the petitioner was not released and was again detained in preventive detention by virtue of the order No. 167/DMB/PSA/2017 dated 27.01.2018, which is impugned in this writ petition. 3. The facts relating to the earlier orders of detention dated 03.09.2016 and 22.07.2017 and both these orders having been quashed by this Court have not been denied by the respondents. The grounds of detention formulated by the detaining authority in support of impugned detention order dated 27.01.2018, insofar as they relate to the incident having taken place after quashment of the second order of detention dated 22.07.2017 by this Court vide judgment dated 08.11.2017 would show that even after his release pursuant to the quashment of detention order dated 22.07.2017, the petitioner, who is a hardcore member of Tehreek Hurriyat Geelani Group, did not stop indulging in criminal activities and was found involved in motivating/instigating the youth of Sopore area for creating law and order incidents. On 06.01.2018 an unruly and violent mob armed with lathies and stones headed by him and his associates resorted to heavy stone pelting on Police/CRPF nafree deployed for law and order duty at Main Chowk, Sopore with the intention of killing in which some vehicles of CRPF were damaged. FIR No. 08/2018 under section 147, 148, 149, 336, 307, 427 RPC was registered in this regard. The detaining authority was thus of the opinion that the activities of the petitioner were very much dangerous for the maintenance of the public order. The petitioner was the main instigator/motivator of stone pelters. FIR No. 08/2018 under section 147, 148, 149, 336, 307, 427 RPC was registered in this regard. The detaining authority was thus of the opinion that the activities of the petitioner were very much dangerous for the maintenance of the public order. The petitioner was the main instigator/motivator of stone pelters. He was active in motivating/instigating the gullible youth of Sopore area for creating incidents of stone pelting in order to sustain the wave of protest. The detaining authority, thus, passed the impugned order of detention. 4. One of the main grounds of challenge to the impugned order is that after his arrest in FIR No. 08/2018, the petitioner had not applied for bail so respondent No. 2 had no jurisdiction to detain him under the Act and the order of detention is therefore, illegal. Learned counsel for the petitioner, Mr. Mohd. Ashraf Bhat submitted vehemently that an order of detention passed at a time when detenu is allegedly involved in commission of offence under substantive law and is in the custody of the State Agencies is illegal. Learned counsel sought to point out that no compelling reasons justifying preventive detention of the petitioner have been stated in the impugned order of detention or the grounds of detention when the detenu was already in the custody of the State Authorities because of his alleged involved in commission of non bailable offences in FIR No. 08/2018. Learned counsel cited Binod Singh v District Magistrate Dhanbad, Bihar and others, (1986) 4 SCC 416 and Surya Prakash Sharma v State of U.P. and others, 1994 Supp (3) SCC 195. 5. The stand of the respondents in this regard is in line with the grounds of detention referred to hereinabove. Learned Government Advocate, Mr. Asif Maqbool, submitted vehemently that a fresh order of detention can be passed if a person after his release from his earlier detention again indulging in such activities which are prejudicial to the security of State or for maintenance of public order. 6. It has not been denied and is indisputable that as at the time of passing of the impugned order of detention the petitioner had already been taken in custody by the police because of his involvement in FIR No. 08/2018 relating to the incident of stone pelting having taken place on 06.01.2018. 6. It has not been denied and is indisputable that as at the time of passing of the impugned order of detention the petitioner had already been taken in custody by the police because of his involvement in FIR No. 08/2018 relating to the incident of stone pelting having taken place on 06.01.2018. Legal position in regard to preventive detention of a person, who is already in custody of the State Agencies in connection with commission of an offence under substantive law, is well settled. Normally, preventive detention of such a person should not be ordered. Nonetheless, preventive detention of such a person can still be ordered, if the detaining authority has compelling reasons to believe that he is likely to be released in the substantive offence either on bail or due to his acquittal or discharge. In Binod Singh's case (supra) Supreme Court has held that "if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised." In Surya Prakash Sharma’s case, Supreme Court has referred to an earlier three-Judge Bench decision of the Court in Dharmendra Suganchand Chelawat v Union of India, (1990) 1 SCC 746 , where the question has been answered in 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 it is necessary that the grounds of detention 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 implied 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." 7. It is not stated in the grounds of detention or the order of detention that the petitioner had applied for bail in FIR No. 08/2018 and/or there was reason to believe that he was likely to be released. Nothing in this regard is stated in the counter affidavit also. 8. To sum up thus, the order of detention or the grounds of detention formulated by the detaining authority sans any compelling reason necessitating the preventive detention of the petitioner, notwithstanding that he was already in custody for his alleged involvement in commission of offence in FIR No. 08/2018 (supra). Such an order cannot sustain and is liable to be quashed on this score alone. 9. Viewed thus, this petition is allowed as it has merit and in the result, the impugned order dated 27.01.2018 (supra) is quashed. Petitioner be set at liberty, if not required in any other case. 10. Record of the case be remitted back to the learned counsel for the respondents.