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2018 DIGILAW 395 (JK)

Suhail Ahmed Bhat v. State of J&K

2018-06-06

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. In this Habeas Corpus Petition, petitioner, Suhail Ahmad Bhat, seeks quashing of order No. 21/DMK/PSA of 2017 dated 02.12.2017 passed by the District Magistrate, Kupwara, respondent No. 3, whereby he has been taken in preventive detention under section 8(1)(a)(i) read with section 8(2)(ii) of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act), with a view to prevent him from acting in any manner prejudicial to the security of the State. 2. Heard learned counsel for the parties and perused the record. 3. The grounds of detention formulated by the respondent No. 3 on the basis of the dossier placed before him by the Senior Superintendent of Police, Handwara would show, precisely and inter alia, that the subject (petitioner), who was born in the year, 1996, after completion of his matriculation, opened a mobile repairing shop at Main Chowk, Sangam in the year, 2014. He, however, was indoctrinated by Riaz Naikoo, who is an active militant and Abdul Qayoom Paul, who is a former militant, to join HM Outfit and exfiltrate to PoK for obtaining arms training. On 25.10.2017 the subject along with one Danish Ghulam Lone left Srinagar and reached Kupwara. At Adda, Kupwara they met two persons, namely, Daulat Ali Mughal and Liyakat Ali Khan, who were waiting for them. Their further journey was arranged by Daulat Ali Mughal, Liyakat Ali Khan and Haroon Ahmed Sheikh towards Manigah. They had planned to exfiltrate on 30.10.2017 but on the same day they were apprehended by a police party from village, Manigah in suspicious circumstances. FIR No. 279/2017 was registered in this regard with Police Station, Kupwara under sections 13, 18, 18 b of the Unlawful Activities (Prevention) Act, 1967 (for short the ULA Act) and section 120-B RPC. In this case, the subject (petitioner) was released on bail by the court of learned Sessions Judge, Kupwara. On 15.11.2017 a police patrol found two persons, namely, Mohd. Maqbool Dar and Bilal Ahmed Shah trying to paste the posters and banners of terrorist organizations at Saiwan Shotmuqam. One of them, Mohd. Maqbool Dar, was apprehended by the police, whereas the other fled away. In this regard FIR No. 90/2017 under section 13 of the ULA Act was registered with Police Station, Lalpora. During investigation the said Mohd. Maqbool Dar and Bilal Ahmed Shah trying to paste the posters and banners of terrorist organizations at Saiwan Shotmuqam. One of them, Mohd. Maqbool Dar, was apprehended by the police, whereas the other fled away. In this regard FIR No. 90/2017 under section 13 of the ULA Act was registered with Police Station, Lalpora. During investigation the said Mohd. Maqbool Dar disclosed that he along with the subject (petitioner) are working for banned terrorist organizations including LeT, HM and Jaish Mohammad and they distribute and paste the banners of the said organizations and also used to threaten sarpanches and enforce hartals. Thereafter, the subject (petitioner) was arrested. He, however, moved an application for release on bail and there was likelihood of his release on bail. The respondent No. 3, thus, was of the view that the petitioner, being a hard core associate of foreign and local militants, is a constant threat to the security of the State and, if permitted to remain at large, he will continue to indulge in such nefarious activities, which are hazardous to the sovereignty and integrity of the Country and therefore, passed the impugned order of detention. 4. The preventive detention of the petitioner (detenue) is challenged on various grounds. One of the grounds, which were vehemently urged by the learned counsel for the petitioners, is that as at the time of passing of the impugned order of detention, petitioner was already in custody of the police because of his alleged involvement and arrest in FIR No. 90/2017 (supra) under section 13 of the ULA Act, which is a non-bailable offence. 5. Learned counsel for the petitioner, Mr. S. T. Hussain, Advocate argued eloquently and with vehemence that an order of detention passed at a time when the detenu is allegedly involved in commission of an offence under substantive law and is in the custody of the State Agencies is illegal. Learned counsel submitted that as per the respondents’ admission petitioner was involved and was arrested in commission of offence under section 13 of the ULA Act, which is a non-bailable offence, so the respondent-State could well have contested the application for bail moved on his behalf instead of resorting to the easier option of passing the order of preventive detention. Learned counsel submitted that as per the respondents’ admission petitioner was involved and was arrested in commission of offence under section 13 of the ULA Act, which is a non-bailable offence, so the respondent-State could well have contested the application for bail moved on his behalf instead of resorting to the easier option of passing the order of preventive detention. Learned counsel submitted further that order of preventive detention of a person, when the said person is in custody of the State Authorities for commission of offence under a substantive law, can be passed only when there are compelling reasons for taking the person in preventive detention and such reasons are required to be reflected in the order of detention as also the grounds of detention formulated by the detaining authority. 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 involvement in commission of non bailable offences in FIR No. 90/2017. 6. Legal position in regard to preventive detention of a person, who is already in custody of the State Agencies in connection with alleged commission of 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. 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 v District Magistrate Dhanbad, Bihar and others, (1986) 4 SCC 416 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 v State of U.P. and others, 1994 Supp (3) SCC 195 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 evident from the grounds of detention formulated by the detaining authority that as at the time of passing of the impugned order of detention the petitioner had already been arrested for his alleged involvement in FIR No. 90/2017 (supra) under section 13 ULA Act. The detaining authority has also shown his awareness that the petitioner has applied for bail and recorded his opinion that there was likelihood of his release on bail. The detaining authority has also shown his awareness that the petitioner has applied for bail and recorded his opinion that there was likelihood of his release on bail. However, recording of such opinion lacks the grounds or the reasons for his satisfaction that bail was likely to be granted. It is important to note that offence under section 13 of the ULA Act is a non-bailable offence and application for bail could well have been opposed on behalf of the State. Mere saying, without stating reasons, that a person is likely to be released on bail is not sufficient for passing an order of preventive detention against the said person. 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 under section 13 of the ULA Act in FIR No. 90/2017 (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 detention order is quashed and the 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. 11. Disposed of.