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2019 DIGILAW 142 (JK)

Mohd. Sidiq Lone v. State of J&K

2019-03-20

SANJAY KUMAR GUPTA

body2019
Judgment 01. Petitioner has sought quashment of detention ORDER NO; 17/DMB/PSA of 2018 dated 22.9.2018 passed by respondents. The petitioner has stated in this petition that he is law abiding and peace loving citizen of the state and has never involved in any subversive activity which would cause prejudice to public order or security of State. That petitioner was arrested by the security forces without any justification and cause on 29.08.2018, from a marriage party where he was cook and he was taken to police station Argam and was detained there illegally. That he was enlarged on bail on 11.09.2018. That petitioner served the bail order to the concerned police station, however the he was not released but was kept detained in the police station. While being in illegal custody of P/S Argam, he was shifted to Sub Jail Hiranagar Jammu where he was detained further. That petitioner has challenged the detention order on three grounds:— 1. That he had been already bailed out in FIR 23/2018 but the concerned police station did release him. In grounds of detention this aspect of matter has not been mentioned and there is also no mention of fact that after bail he will against indulges in same offences. 2. That petitioner was not knowing English and detention order has been passed in English, so it is illegal. Petitioner was not made to understand the grounds of detentions in his own language. 3. That all the material was not provided to him like copy of FIR, statements under section 161 Cr.p.c and seizure memo pertaining to cases mentioned in grounds of detention. By not providing these material prejudice has been caused, because no effective representation could be made to competent authority. Even he was not informed for making representation to detaining authority. 4. The detaining authority has not recorded his subjective satisfaction while passing the order, but has passed the order on the dictation of police and on satisfaction of police authority. 5. That allegations are vague, non-existent and baseless as detaining authority has not given any justification that ordinary law will not sufficient in dealing the allegations. 02. The respondents have filed their objection/counter affidavit and have stated that impugned order is not at all punitive in nature but preventive having been passed by the deponent in exercise of powers conferred by Clause (a) of Section 8 of J&K Public Safety Act, 1978. 02. The respondents have filed their objection/counter affidavit and have stated that impugned order is not at all punitive in nature but preventive having been passed by the deponent in exercise of powers conferred by Clause (a) of Section 8 of J&K Public Safety Act, 1978. That the petitioner was involved in case FIR no. 15/2017, 26/2017 & 23/2018. That petitioner along with his associated have hijacked the peace and order of village and adjoining areas by trying to enforce the unlawful writ by threatening the shopkeepers and common masses in the surrounding villages. 03. I have considered the rival contentions of parties. The detention order reads as under:— Detention under J&K Public Safety Act 1978 ORDER NO: 17/DMB/PSA of 2018 Dated 22.9.2018 Whereas, on the basis of dossier placed before me by Sr. Superintendent of Police Bandipora vide his No: Lgl/PSA-28/2018/34065-71, dated 07.09.2018, I am satisfied that there are sufficient grounds to prevent Mohd. Sadiq Lone S/o Mohd. Hayat Lone R/o Wani Mohalla Nahihal Tehsil & District Bandipora from acting in any manner which is prejudicial to the maintenance of public order and it is necessary to detain him under Public Safety Act, 1978; Now, therefore in exercise of powers vested in me in terms of Clause (a) of Section-8 of J&K Public Safety Act, 1978, I, District Magistrate Bandipora hereby direct that the said Mohd. Sadiq Lone S/o Mohd. Hayat Lone R/o Wani Mohalla Nadihal Tehsil & District Bandipora be detained and lodged in Kot Bhalwal Jail Jammu. Grounds of detention are as under:— As per grounds mentioned in the Dossier submitted by the Sr. Superintendent Police Bandipora Vice his No: Lgl/PSA-28/2018/34065-71, dated 07.09.2018 you were born on 20 years. You got basic education from Government Middle School Nadihal Bandipora wherefrom you passed 8th Class Examination. After that you got admitted in Government Higher Secondary School Nadihal Bandipora and studied upto 9th Class. Later on you left your studies and started working as cook (waza). You have an incorrigible criminal bent of mind which is quite evident from your conduct over a period of time. Your activities have potentially disturbed the public peace and tranquillity. You have played a key role in instigating/provoking the youth of Nadihal and its adjacent areas against Government established by law. You have an incorrigible criminal bent of mind which is quite evident from your conduct over a period of time. Your activities have potentially disturbed the public peace and tranquillity. You have played a key role in instigating/provoking the youth of Nadihal and its adjacent areas against Government established by law. You and your associates have played an active/key role for organizing violent mobs in order to enforce separatist’s protest calendar resulting in law and order problem in Nadihal Bazzar and its adjacent areas. You have not only played a crucial role in fuelling unrest by supporting the Bandh calls given by the separatists but have also followed their protest calendar in letter and spirit. You have been found at the forefront leading the unlawful processions which were organized/mobilized by you and your associates. On 08.07.2017 you and your associates orchestrated a violent mob at Nadihal Bandipora to make Hartal/Bandh calls given by separatists and Hurriyat Successful. You and your associates pelted stones upon police/security forces deployed for law and order duty resulting in damage to Government/Public vehicles. You and your associates also obstructed the public servants/Police party for discharging their legitimate official duties. In this regard a case under FIR no. 15/2017 u/s 148, 149, 336, 353 RPC stands registered in P/S Aragam against you and your associates. Investigation of the case was taken up which culminated as Challan against you and your associates under the aforesaid Sections of law and the same was charge sheeted before the Court of Law. On 04.10.2017 you and your associates instigated/provoked a violent mob at Nadihal Bandipora and resorted to heavy stone pelting on motor cavalcade of Sr. superintendent of Police Bandipora resulting in damage to the Government vehicle. Consequently, a case under FIR No. 26/2017 U/s 148, 149, 336, 427 RPC stands registered in P/S Argam against you and your associates. Investigation of the case was taken up which was culminated as challenged against you and your associates under the aforesaid sections of law and the same has been filed before the Hon’ble Court of law. On 29.08.2018 you and your associates orchestrated a violent mob at Main Market Nadihal Bandipora and pelted heavy stones upon the security/police personnel and also attacked the Motor Cavalcade of Deputy Commissioner Bandipora resulting in damage to the Government vehicle of Deputy Commissioner Bandipora. Accordingly, a case under FIR no. On 29.08.2018 you and your associates orchestrated a violent mob at Main Market Nadihal Bandipora and pelted heavy stones upon the security/police personnel and also attacked the Motor Cavalcade of Deputy Commissioner Bandipora resulting in damage to the Government vehicle of Deputy Commissioner Bandipora. Accordingly, a case under FIR no. 23/2018 u/s 148, 149, 336, 353, 427 RPC, 3 PPD Act was registered in P/S Argam against you and your associates. The investigation of the case was taken up which is underway. You have neither mend your ways nor seem to have learned any lesson from the past when you were booked under normal law in case Fir no. 15/2017 u/s 148, 149, 336, 353 RPC and 26/2017 u/s 148, 1049, 336, 427 RPC which are subjudice before the Court of Law but instead continue to engage in activities which are detrimental to public peace and order. You have been arrested on 03.09.2018 in the case FIR no. 23/2018 u/s 148, 149, 336, 353, 427 RPC 3 PPD and are presently on proper police remand. In case you are freed at this stage you will further indulge yourself with likewise activities which will be detrimental to the public peace and order. You are skilled in exploiting the religious feelings among youth and in conducting riots and unlawful assemblies which would turn out to be serious impediment in the maintenance of law and order. From the above enumerated facts and circumstances, it is evident that your activities are not only prejudicial to the maintenance of public peace and order but also detrimental to the national integrity, sovereignty and to the peaceful atmosphere of the society. In case you remain at larger you will not only act against law enforcing agencies but will also provoke/instigate others for anti-national activities by way of restoring to stone pelting on Police/Security Forces and other law enforcing agencies in Nadihal Town and its adjacent areas which will have adverse effect on peaceful atmosphere of the areas. The ordinary law of the land does not seem to deter you from restraining yourself from nefarious activities against duly established government. There is every likelihood and apprehension that you will further invariably indulge and will continue with your nefarious activities which will be dangerous to the maintenance of public order. Thus it has become imperative to take the recourse of preventive laws in order to curb your nefarious activities. There is every likelihood and apprehension that you will further invariably indulge and will continue with your nefarious activities which will be dangerous to the maintenance of public order. Thus it has become imperative to take the recourse of preventive laws in order to curb your nefarious activities. Therefore, your detention under J&K Public Safety Act has become imperative, as such you are hereby detained under the provisions of J&K Public Safety Act 1978. However, you have a right of making representation before the Government/detaining authority against your detention, if you, choose so. 04. From bare perusal of detention grounds, it is evident that petitioner has been detained under section 8 of P.S Act on the ground that his activities are prejudicial to maintenance of public order. Preventive detention means Executive can curtail the Rights of Personal Liberty for the purpose of safeguarding national security or public order. In these circumstances that person may arrest without frame any charge and without any trail proceeding. No person may claim their fundamental Rights or other Rights which are given under Constitutional law and other Laws. This law is based on the theory that “prevention is better than cure” any person may be arrested before committing the crime the crime which may harmful for the national security or public order so it is codified under article 22 of Indian Constitution. Preventive detention is not general rule it is a specific rule which will be apply in specific circumstances. If preventive detention is ‘arbitrary’, within the wide interpretation, it will be a permissible deprivation of personal liberty. It may enforce only on the basis which are given under article 22 of constitution of India. Preventive detention will, however, always be considered ‘arbitrary’ if safeguards for those arrested and detained are not complied with, in particular the right to judicial review of the lawfulness of detention. 05. Procedural requirement are the only safeguards available to a detenue; procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. Procedural laws especially in criminal administration of justice has to be complied strictly. One of ground taken by petitioner is that petitioner was not supplied with material and documents referred in the grounds of detention. Although in objections in para no. Procedural laws especially in criminal administration of justice has to be complied strictly. One of ground taken by petitioner is that petitioner was not supplied with material and documents referred in the grounds of detention. Although in objections in para no. ii that detention order along with grounds and material relied was read over to petitioner in Urdu and Kashmiri language; but there is no mention as to on which date and who read over and supplied the relevant materials to petitioner. So bald aversion in objection with the serve the purpose that this procedural law has been complied. 06. The Apex Court in Mangalbhai Motiram Patel v. State of Maharashtra, AIR 1981 SC 510 : (1981 Cri LJ 331) while focusing on the procedural safeguards and constitutional imperatives in the matter of preventive detention, observed (Para 7):— ...This Court has forged certain procedural safeguards in the case of preventive detention of citizens. The constitutional imperatives indicated in Article 22(5) are twofold; (1) the detaining authority must as soon as may be, that is, as soon as practicable, after the detention, communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention. The right to make a representation implies what it means ‘the right of making an effective representation’. Where certain documents are relied upon in the grounds of detention, the grounds would be incomplete without such documents. The detenue, therefore, has the right to be furnished with the grounds of detention alongwith the documents relied upon. The connotation, scope and range of term “communication of grounds of detention”, in order to constitute compliance with Article 22(5), as laid down by the Supreme Court in Smt. Icchu Devi Choraria v. Union of India, AIR 1980 SC 1983 , is (Para 6):— ...what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenue, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenue cannot be said to be complete without them. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenue, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenue cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenue a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenue within the prescribed time subject of course to Clause (6) of Article 22 in order to constitute compliance with clause (5) of article 22 and section 3, sub-section (3) of the COFEPOSA Act.... 4. In Naser Ahmad Sheikh v. Addl. Chief Secretary Home, 1999 Sri LJ 241 a Division Bench of this Court observed:— ...The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP. Nowhere is it pleaded, much less shown, that the copy/copies of these reports of the police on which the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenue so as to enable him to make an effective representation against the order. 5. In Sophia Gulam Mohd Bham v. State of Maharashtra, AIR 1999 SC 3051 : (1999 Cri LJ 4064), the Apex Court in the context of “communication of grounds” held (Para 14):— ...The right to be communicated the grounds of detention flow from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language... 6. In Ghulam Mohd. 6. In Ghulam Mohd. Mir v. State of Jammu and Kashmir (2000 Cri LJ 3233 (J.&K.) (H. C. Petition No. 93/99) decided on 30-12-1999, it is recorded (Para 8):— ...In the circumstances, the detenue cannot be said to have been provided an opportunity and the means to make meaningful and effective representation against the detention as guaranteed apart from provisions of public safety act, by article 22 of the constitution. So long the material, on which the facts or conclusions constituting the grounds and basis of subjective satisfaction of the detaining authority, is withheld from or denied to the detenue, the detenue cannot be said to be communicated the grounds with material. If so, detenue is denied opportunity to make representation. 07. It is manifest that the basic facts and material having a bearing and influencing detaining authority’s subjective satisfaction and conclusion must be communicated to the detenue. This is the basic requirement of first safeguard laid in article 22(5) of the constitution. Once this is done, the second obligation of the State to afford detenue an opportunity to make representation to the Govt. comes into play. Whether there is non-compliance with this mandatory provision of article 22(5) is to be judged in the overall facts and circumstances of a case. If certain documents and material is relied in the grounds of detention, the grounds would be incomplete without such documents/material. The detenue has a right to be furnished with grounds of detention along with the documents/material relied on. In absence of supply of such documents/material, detenue would be deemed deprived of the opportunity of making an effective representation. 08. Another ground taken is that petitioner was already in in jail and was bailed out on 11.9.2018; but despite that he was not realised and kept in custody and in custody the detention order was passed and supplied to petitioner. So as per counsel for petitioner grounds of detentions should have mentioned that there were compelling reason to keep the petitioner in preventive detention despite the fact that he has been released on bail. 09. In SLJ (11) 2017 page 650, it has been held as under:— Relevant para-11. 11/ We shall take up the first point with regard to the ground of satisfaction that has to be recorded by the detaining authority in case the detenue is already in custody in connection with some other case. 09. In SLJ (11) 2017 page 650, it has been held as under:— Relevant para-11. 11/ We shall take up the first point with regard to the ground of satisfaction that has to be recorded by the detaining authority in case the detenue is already in custody in connection with some other case. In this context the need to refer to the decision of the Supreme Court in Surya Prakash Sharma (supra). Paragraphs 5, 6 & 7 are relevant and they are extracted herein below:— “5. The question as to whether and in what circumstances an order for preventive detention can be passed against has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Ramereshwar Shaw versus District Magistrate, Burdwan. To eschew prolixity, we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat versus Union of India, wherein a three Judge Bench, after considering all the earlier relevant decisions including Ramereshwar\war Shaw answered the question in the following words: “The decisions referred to above led 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 detenue is already in detention ; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which, it may be satisfied that (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, 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.” 6. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained though the grounds of detention indicate the detaining authority’s awareness of the fact that the detenue was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record an cogent material nor furnished any cogent ground in support of the averment made in the grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail “he may again indulge in serious offences causing threat to public order” (emphasis supplied). To put it differently the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified. 7. On the conclusions as above, we quash the order of detention” 12/ From the above decision, it is evident that for an order of detention to be valid in respect of a person in custody, it is necessary that the grounds of detention must show that: (i) the detaining authority was aware of the fact that the detenue is already in custody; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression “compelling reasons” has also been explained by the Supreme Court as signifying that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a)the detenue is likely to be released from the custody in the near future and (b) taking into account the nature of the antecedent activities it is likely that after his release from custody he would indulge in prejudicial activities and that it was necessary to detain him in order to prevent him from engaging in such activities. 13/ In the present case we find that although there is mention of the fact that the detenue had been arrested in connection with F.I.R No. 100/2016 but, it is not clear as to whether the detaining authority was aware of fact that the detenue continued to be in custody. 13/ In the present case we find that although there is mention of the fact that the detenue had been arrested in connection with F.I.R No. 100/2016 but, it is not clear as to whether the detaining authority was aware of fact that the detenue continued to be in custody. Furthermore, if we assume that the detaining authority was aware that the detenue was in custody in respect of FIR No. 100/2016, the compelling reasons, referred to above, have not been indicated in the grounds of detention. In other words, the grounds of detention nowhere make a mention or indicate satisfaction that the detenue was being likely to be released from custody in near future. Therefore, in view of the decision of Supreme Court in Surya Prakash Sharma, this alone vitiate the detention order.” 10. Respondents have thus not complied with cardinal principles of law while passing the detention order against petitioner. In view of what has been discussed above detention Order No.17/DMB/PSA of 2018 dated 22.9.2018 passed by respondents is quashed. Detenu to be set free if not required in any other case.