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2020 DIGILAW 403 (JK)

Abdullah Bin Mohammad Janwari v. State of J&K

2020-08-20

SINDHU SHARMA

body2020
JUDGMENT The District Magistrate, Baramullah vide his Order No. 143/DMB/PSA/2019 dated 30.03.2019, has placed Abdullah Bin Mohd. Janwari S/o Sh. Ghulam Mohammad Janwari under detention under section 8 of the Jammu and Kashmir Public Safety Act, 1978 in the interest of the security, sovereignty and integrity of the State. This detention order has been challenged by the petitioner through his brother in the present petition. 2. The order of detention has been assailed by the detenu on the following grounds: (i) that the detaining authority has not shown any compelling reason for passing an order of detention since the detenu had already in custody. (ii) that the material relied upon dossier was not furnished to the detenu for making representation, particularly the dossier has not been provided to him. (iii) that the detenu has not been informed to which authority, a representation is to be made by the detenu, thereby preventing him from making effective representation and, as such, is in violation of the Article 22(5) of the Constitution of India. (iv) that the detaining authority neither provided the grounds of detention nor explained the same to him in the language which he understand, thus, deprived him from the right to make an effective representation 3. Mr. Asif Maqbool, learned Deputy Advocate General has filed counter affidavit as well as produced the record. It is contended that the detenu was also supplied all the relevant material relied upon by the Detaining Authority to enable him to make an effective representation, but he chosen not to do so. The impugned detention order was passed on 30.03.2019 with a view to prevent the detenu from helping and providing logistic support to the transportation of local and foreign militants in LeT outfits as the same were prejudicial to the security of the State. The detenu was detained in order to prevent him from indulging in such activities. The detenu was also informed that he could make representation against the impugned order of detention to the Government as well as to the District Magistrate, Baramulla, but despite being informed of the same, he has not made any representation to any of the authorities. 4. The detenu was detained in order to prevent him from indulging in such activities. The detenu was also informed that he could make representation against the impugned order of detention to the Government as well as to the District Magistrate, Baramulla, but despite being informed of the same, he has not made any representation to any of the authorities. 4. The detenu was apprehended by police on 13.02.2019 for his involvement in FIR No. 07/2019 under Section 18/39 of Unlawful Activities (Prevention) Act, 1967, therefore the Detaining Authority, while passing order of detention was aware of the fact that the detenu was in custody. The grounds of detention are precise, proximate and relevant. The detention order is passed after the subjective satisfaction arrived at by the detaining authority. 5. Heard learned counsel for the parties and perused the record. 6. Perusal of the record reveals that the Detaining Authority in the grounds of detention has stated as under :- “…….You on the directions of LeT militants transported a group of militants comprising 02 foreign and 01 local militants of LeT outfit from Mawar Handwara to Tujjar Sharief Sopore on 01-02-2019 and thereafter you received some amount from On 13-02-2019, Police Station Bomai received an information through reliable sources that one Mohammad Abdullah Janwari S/O Gh Mohammad Janwari R/O Sideeq Colony Sopore is motivating youth of area Zaingeer to join militancy and is providing all sorts of assistance to the militants of LeT outfit for doing subversive/militancy related activities. On this case FIR No. 07/2019 U/S 18,39 ULA(P) Act stands registered in Police Station Bomai which is underinvestigation. Copy of FIR/Seizure memo/Disclosure Memo/ Arrest memo/Statements U/S 161 Cr,PC are enclosed marked as annexure “A to F”. In view of the above mentioned facts, it is clear that you are a strong OGW of banned LeT outfit and is providing every possible support to the terrorists for doing subversive /criminal activities. If you will be allowed to move freely it will become fatal for security agencies for the maintenance of security of the area Sopore. Your activities remained always threat to the security of state especially in Range Baramulla particularly in Sopore area and ordinary law is not sufficient to stop you from carrying out subversive/nefarious activities………….” 7. The detenu was already in custody when the impugned order of detention was passed. Your activities remained always threat to the security of state especially in Range Baramulla particularly in Sopore area and ordinary law is not sufficient to stop you from carrying out subversive/nefarious activities………….” 7. The detenu was already in custody when the impugned order of detention was passed. The detaining authority has neither shown any awareness of detenu’s earlier detention nor assigned any compelling or cogent reason for passing of the impugned order of detention. The detenu was already in custody in FIR No. 07/2019 for commission of offences under Sections 18/39 of Unlawful Activities (Prevention) Act, 1967 registered at Police Station Bomai. The reply affidavit is also silent regarding the custody of the detenu in the FIR referred to hereinabove. 8. The grounds of detention give description of the cases registered against the detenu but no subjective satisfaction was recorded by the District Magistrate regarding the fact that the detenu was already in custody in the aforementioned case and there was likelihood of his being released on bail soon. The Apex Court in Binod Singh v. District Magistate, Dhanbad Bihar & ors., (1986) 4 SCC 46 held that if a person was already in custody and there is no imminent possibility of his being released, the power of preventive detention should not ordinarily be exercised. There must be cogent material before passing the order that the detenu is likely to be released on bail. 9. No doubt, it is settled precedent that passing of detention order is based on subjective satisfaction of the Detaining Authority but when the detenu was already in custody, the Detaining Authority had to record compelling reasons to justify the detention. But the order of detention has been passed without recording any subjective satisfaction and imminent possibility of the detenu being enlarged on bail and he would again indulge in any activity prejudicial to the security of the State. Thus, compelling reasons in this case were not gathered from the attending circumstances which makes the impugned detention order illegal and not sustainable in the eyes of law. 10. Thus, compelling reasons in this case were not gathered from the attending circumstances which makes the impugned detention order illegal and not sustainable in the eyes of law. 10. The Hon’ble Supreme Court in Surya Prakash Sharma vs. State of UP, 1994 SCC (Cr,) 1691, it has been held that :- “The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan. To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelawat v. Union of India, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw (supra) answered the question in the 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.” 11. Further, in Vijay Kumar Vs. Union of India & Ors. 1988 (2) SCC 5, it has been held by the Supreme Court that : “15 ……… (i) awareness of the detaining authority of the fact that the detenu is already in detention and (ii) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.” 12. Union of India & Ors. 1988 (2) SCC 5, it has been held by the Supreme Court that : “15 ……… (i) awareness of the detaining authority of the fact that the detenu is already in detention and (ii) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.” 12. The Detaining Authority in such circumstances must show that there were compelling reasons for detaining the detenu and in the absence of which the detention is illegal. The detaining authority has not produced any material in support to justify the detention of the detenu. 13. The grievance of the detenu is also that the detaining authority has not supplied all the relevant material relied upon, while passing the order of detention. The execution report reveals that detenu was not supplied the Police Dossier and other relevant material relied upon by the detaining authority. This omission deprives the detenu from making an effective representation against his detention. Supplying only grounds of detention, FIR without Police Dossier and other material would violate his right to make an effective representation against his detention in terms of Section 13 of the Jammu and Kashmir Public Safety Act. 10. In Sophia Ghulam Mohd. Bham v. State of Maharashtra and others, AIR 1999 SC 3051 , the Apex Court observed as under:- “… The right to be communicated the grounds of detention language…..” 11. In Thahira Haris etc. etc. v. Government of Karnataka and others, reported in AIR 2009 Supreme Court 2184, the Hon’ble Apex Court has held as under: “27. There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.” 14. In view of the aforesaid discussions, the impugned detention order suffers from total non-application of mind. There is no need to advert to the other grounds as pleaded in this petition, This petition is allowed and impugned detention order No. 143/DMB/PSA/2019 dated 30.03.2019, of Abdullah Bin Mohd. Janwari S/o Sh. Ghulam Mohammad Janwari is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 15. Disposed of in the aforesaid terms. 16. Let the detention record be returned back to learned counsel for the respondents by the Registry forthwith.