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2019 DIGILAW 149 (JK)

Zahoor Ahmad Khan v. State of J&K

2019-03-20

SANJAY KUMAR GUPTA

body2019
JUDGMENT : 01. In this petition, petitioner has challenged the detention order No.121/DMB/PSA/2018 dated 29-12-2018; it has been stated that detenue has been falsely implicated in FIR no.230/2018, Police Station Pattan, Baramulla, for the commission of offence under Section 7/25 A. Act, 10 ULA (P) Act, 207 M.V. Act. The detainee, despite being implicated in the substantive offences, has been booked under the provisions of the Preventive Detention Law by Respondent no.2. The impugned order of detention has been passed at the behest and instance of SSP Baramulla and the subjective satisfaction which is sine quo non for passing of the order of detention has been drawn by the concerned and not by the Respondent No.2 himself, which is not permissible under law. 02. Through the medium of the instant petition, petitioner challenges the impugned order of detention on the ground that the petitioner was already in custody at the time of passing of detention order so detention order should have a mention that material relied upon by the detaining authority on the basis of which detention order was passed was not provided to him. That due to non-providing of such material, prejudice has been caused to the detenue in filing the representation before the detaining authority as well as to Government. That he was already in custody at the time of passing of detention order so order of detention is bad in the eyes of law. 03. During the course of arguments counsel for the petitioner has stated that passing of order of detention for maximum period is not permissible under law. 04. Respondents have filed the objections in which it has been stated that detenue’s preventive detention has been ordered by the detaining authority in terms of Section 8 of J&K Public Safety Act, 1978 with a view to prevent the detenue from acting in any manner prejudicial to the maintenance of security of the State. 05. That the detenue Zahoor Ahmad Khan S/o Abdul Rashid Khjan R/o Mohalla Bonpore Soibugh Budgam, District Budgam has been detained in terms of detention order No.121/DMB/PSA/2018 dated 29-12-2018 with a view to prevent him from acting in any manner prejudicial to the maintenance of security of the State and was directed to be lodged in Central Jail Kote Bhalwal. 05. That the detenue Zahoor Ahmad Khan S/o Abdul Rashid Khjan R/o Mohalla Bonpore Soibugh Budgam, District Budgam has been detained in terms of detention order No.121/DMB/PSA/2018 dated 29-12-2018 with a view to prevent him from acting in any manner prejudicial to the maintenance of security of the State and was directed to be lodged in Central Jail Kote Bhalwal. The detention order along-with the grounds of detention and other material which was relied upon by the detaining authority stands furnished to the detenue. It is submitted that the grounds of detention are precise, proximate and relevant. There is no vagueness or staleness in the grounds which on the face of it are highly prejudicial for maintenance of security of the State. It is further stated that the activities of the detenue have been reflected in the grounds of detention and the same were highly prejudicial to the preservation of public order and his remaining at large would have caused more damage to the public property and public order, and in order to curb his activities, the detenue was detained under the provisions of J&K Public Safety Act, 1978. The detention order was executed 01-01-2019 and the grounds of detention were read over to the detenue by police officers concerned, besides that the jail authorities also explained and read over the grounds of detention to the detenue. It is stated that preventive detention of the detenue is neither illegal nor unconstitutional. I have considered the rival contentions. 06. In 2010 (I) S.L.J in case titled Shahmali versus State and others, it is held as under:— “8. The next contention raised is that in the order of detention impugned it is recorded that the detenue is detained and lodged in Kotbhalwal Jail, Jammu for a “maximum period” when the Detaining Authority had no power to fix “maximum period” as the Detaining Authority could at the most fix a period of 12 days as required in terms of sub-section 4 of Section 8 of the J&K Public Safety Act. 09. In opposition it has been contended by the learned counsel for the respondents that the period of detention is finally to be decided by the Government, so using the word “maximum period” automatically gets diluted when the State Government fixes the period of detention. 10. It is trite that the authorities concerned shall have to strictly abide by the procedure as prescribed. 10. It is trite that the authorities concerned shall have to strictly abide by the procedure as prescribed. The Detaining Authority no doubt has no power to fix the “maximum period” of detention that is domain of the Government to do so on receipt of report of Advisory Board but to record “maximum period” may have some impact on the minds of the authorities concerned while fixing the period of detention. 11. The similar issue has been set at rest by the Hon’ble Apex Court in the judgment captioned Makhan Singh Tarsikka Vs. State of Punjab, reported in AIR 1952 Supreme Court 27, wherein it has been held that “the fixing of the period of detention in the initial order itself is contrary to the scheme of the Act and cannot be supported” and it has also been held that “such a direction would tend to prejudice a fair consideration of the petitioner’s case when it is placed before the Advisory Board”. 12. Para 4 of the reported judgment shall be apt to be quoted herein-below:— “4. Whatever might be the position under the Act before its amendment in February, 1951, it is clear that the Act as amended requires that every case of detention should be placed before an Advisory Board constituted under the Act (S. 9) and provides that if the Board reports that there is sufficient cause for the detention “the appropriate government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit” (S.11). It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate General, however, urged that in view of the provisions in S.11 (2) that if the Advisory Board reports that there is no sufficient cause for the detention the person concerned would be released forthwith, the detention in order dated 30.7.1951 that the petitioner should be detained till 31.3.1952 could be ignored as mere surplus age. We cannot accept that view. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioner’s case when it is placed before the Advisory Board. It cannot be too often emphasized that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected”. The other contentions raised not now required to be dealt with as the aforementioned two grounds are sufficient for quashing the order of detention. 07. So in view of above law the detention order passed by respondents in present case is not sustainable. The petition succeeds. Order of detention bearing detention order No.121/DMB/PSA/2018 dated 29-12-2018 is quashed. Resultantly detenue is directed to be released forthwith provided he is not required in connection with any other case. Disposed of as above.