Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 404 (JK)

Aijaz Ahmad Shah v. State of J&K

2018-06-07

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. This Habeas Corpus Petition, challenges and seeks quashing of order No. 165/DMB/PSA/2017 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 J&K Public Safety Act, 1978 (for short the Act) in order to stop him from indulging in such activities which are prejudicial to the security of the state. 2. Heard learned counsel for the parties and perused the record produced on behalf of the respondents. 3. The grounds of detention formulated by respondent No. 2 would show that the petitioner, a twenty one years old boy, is an over ground worker of HM outfit. He was arrested by police on 18.02.2017 along with his two associates as three pages of letter pad belonging to the said Outfit were recovered from their possession at a police naka. FIR No. 03/2017 under section 10 and 13 of the Unlawful Activities (Prevention) Act, 1967 (for short the ULA Act) was registered in this regard with Police Station, Dangiwacha. The petitioner was detained under PSA vide order dated 11.03.2017 passed by respondent No. 2. He was later released from the detention and was also admitted to bail in the substantive offence. He, however, did not mend his way. On 13.01.2018, Police Station, Bomai received information that some OGWs of HM and LeT outfits including the petitioner were pasting threatening posters of LeT outfit and FIR No. 07/2018 under sections 506 RPC and 13 ULA Act was registered with the said Police Station. The detaining authority was, thus, of the view that if petitioner is allowed to move freely, it will become fatal for the security agencies deployed for maintenance of security in the Sopore area. Respondent No. 2, thus, passed the impugned order of detention dated 27.01.2018 to stop him from indulging in such activities, which are prejudicial to the security of the State. 4. The impugned order of detention has been challenged on various grounds. It is alleged that the petitioner was not released from custody after the earlier order of his detention dated 11.03.2017 was quashed by this Court vide judgment dated 11.12.2017. Instead the impugned order of detention was passed against him and thereby he was again lodged in the jail. 4. The impugned order of detention has been challenged on various grounds. It is alleged that the petitioner was not released from custody after the earlier order of his detention dated 11.03.2017 was quashed by this Court vide judgment dated 11.12.2017. Instead the impugned order of detention was passed against him and thereby he was again lodged in the jail. It is contended that at the relevant time, the petitioner was already been in custody so the impugned order of detention could not have been passed. Learned counsel for the petitioner, Mr. Saqib Tufail, Advocate submitted vehemently that an order of detention passed at a time when the subject is allegedly involved in commission of 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 in commission of offence under section 13 ULA Act in FIR No. 07/2018 (supra), order of detention could not have been passed against him as the petitioner had not applied for release on bail in the said case nor there was any likelihood of his release or any other compelling reason to pass the detention order. 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. 07/2018. Learned counsel citied 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. Respondents in their counter, while stating that petitioner was released from his earlier detention under the order of detention dated 11.03.2017, have not denied the petitioner’s specific contention that as at the time of passing of the impugned order of detention dated 27.01.2018 he was in custody of the police, may be in connection with FIR No. 07/2018, in which the alleged incident had taken place on 13.01.2018. Learned Government Advocate, Mr. Asif Maqbool, however, maintained that the petitioner even though he was involved in FIR No. 07/2018 was not yet arrested in that case. 6. Learned Government Advocate, Mr. Asif Maqbool, however, maintained that the petitioner even though he was involved in FIR No. 07/2018 was not yet arrested in that case. 6. It needs to be noticed that the impugned order of detention has been passed 13 days after the date of registration of FIR No. 07/2018 but in this context the report of the police officer, who executed the impugned order of detention on 29.01.2018, does not show clearly that the petitioner was taken in custody by him from a place other than the place of his detention in connection with the FIR No. 07/2018. Petitioner’s contention, therefore, that he was in custody of the police as at the time of the passing of the impugned order of detention, therefore, deserves to be accepted, whereas, it is admitted that he at that time was involved in commission of a substantive offence under section 13 of the ULA Act, which is non-bailable. It is nobody’s say nor is it evident from the grounds of detention or the record that the petitioner had applied for bail in FIR No. 07/2018, much less that the detaining authority had a reason to believe that the petitioner was likely to be admitted to bail in that case. 7. Legal position in regard to preventive detention of a person, who is already in custody of the State Agencies in connection with commission of offence under substantive law allegedly committed by him 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’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 judgment 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." 8. That the petitioner had been in custody of the State Authorities for his involvement in commission of a substantive offence has been ignored by the detaining authority inasmuch as the impugned order and the grounds of detention neither indicates any reference to that aspect nor any compelling reason to pass the order of detention. 9. That the petitioner had been in custody of the State Authorities for his involvement in commission of a substantive offence has been ignored by the detaining authority inasmuch as the impugned order and the grounds of detention neither indicates any reference to that aspect nor any compelling reason to pass the order of detention. 9. 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 involved in commission of a non-bailable offence under ULA Act and was in custody of the police. Such an order cannot sustain and is liable to be quashed on this score alone. Even if it is believed, for the sake of argument, that petitioner was not yet arrested in FIR No. 07/2018, then also passing of the order of the detention was not necessitated because he could well have been arrested and detained in the said FIR for commission of the offence under section 13 of the ULA Act, which is a non-bailable offence. 10. 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. 11. Record of the case be remitted back to the learned counsel for the respondents. 12. Disposed of.