Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 407 (JK)

Bashir Ahmad Bhat v. State of J&K

2020-08-20

SINDHU SHARMA

body2020
JUDGMENT The order of detention No. DMS/PSA/49/2019 dated 08.08.2019 passed by the District Magistrate, Srinagar detaining Bashir Ahmad Bhat @ Bashir Kahmiri S/o Mohammad Abdullah Bhat R/o Baghwanpora Barbarshah, Srinagar, to prevent him from acting in any manner prejudicial to the security of the State is challenged in this petition by the detenu through his wife. 2. The detenu has challenged the order of detention on the grounds that; (i) the detenu was initially implicated in FIR No. 20/2016 in which he was admitted to bail by the competent court on 20.12.2018. The detenu while still in the custody of the police station, was detained and taken him in preventive custody vide order dated 24.12.2018. The detention order dated 24.12.2018 was challenged by the detenu in HCP No. 10/2019, and the same was quashed vide order dated 27.05.2019. On the same allegations, the detenu was again detained vide the impugned order of detention. The fresh order of detention on the same grounds on which the earlier order of detention was quashed shows total non-application of mind and vitiates the detention. (ii) the detenu was enlarged on bail in cases mentioned in the grounds of detention, however, this fact has not been noticed by the Detaining Authority in the grounds of detention, as such, the impugned order of detention was passed on total non-application of mind. (iii) there is a delay of more than 16 months from the date of alleged activities and the passing of the order of detention and no reason for delay in passing the detention order is given which has vitiated the impugned order of detention. (iv) the Detaining Authority has not furnished all the relevant material relied upon to the detenu, while passing the order of detention, thus, preventing him from making an effective representation. The detenu does not know English language, however, neither detention order nor the grounds of detention have been read over and explained to him in a language which he understands. The Detaining Authority has also not provided all translated copies of all the material relied upon to the detenu and the same has prevented him from making an effective representation. 3. Mr. B. A. Dar, learned Senior Additional Advocate General has filed counter affidavit. However, record has not been produced despite grant of repeated opportunities to the respondents. 4. The Detaining Authority has also not provided all translated copies of all the material relied upon to the detenu and the same has prevented him from making an effective representation. 3. Mr. B. A. Dar, learned Senior Additional Advocate General has filed counter affidavit. However, record has not been produced despite grant of repeated opportunities to the respondents. 4. Learned counsel for the respondents has contended that the detenu was detained under the provisions of the Public Safety Act validly vide the impugned order of detention dated 08.08.2019. All the statutory and constitutional guarantees have been complied by the Detaining Authority. The order of detention has been passed by the Detaining Authority after arriving at its subjective satisfaction on the basis of material produced before it. All the material relied upon by the Detaining Authority was furnished to the detenu and the contents of the detention order as well as grounds of detention were explained to him in the language he understands. 5. Heard learned counsel for the parties. 6. The detenu has alleged that he was not supplied all the relevant material relied upon, while passing the order of detention. Though the respondents have not produced the record, however, as per the execution report annexed with the counter, the detenu was supplied grounds of detention and other relevant documents, (08 leaves). There is nothing on the file to indicate that the documents as relied upon and the grounds of detention have been furnished. One of the grounds for quashing the earlier order of detention was non-furnishing of the relevant material relied upon was not provided to the detenu. Perusal of the file reveals that only eight leaves have been provided which cannot be all the relevant material as the same would include all the FIRs, dossier and other relevant material which would be more than eight leaves. Non-furnishing of the relevant material has, thus, prevented the detenu from making an effective representation and thus vitiated the order of detention. 7. The Apex Court in Sophia Ghulam Mohd. Bham v. State of Maharashtra and others, AIR 1999 SC 3051 , observed as under:- “… The right to be communicated the grounds of detention flows 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 detenu to make a representation against the order of detention. 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 the detenu 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…..” 8. The order of detention is also challenged on the ground that the detenu was already in custody at the time of passing of the detention order, this has not been disputed but this important fact was not noticed by the Detaining Authority while passing the order of detention. The Detaining Authority, has to satisfy itself that detenu who is already in custody is required to be placed under preventive detention and record its reasons. Absence of such reasons in the grounds of detention vitiates the detention. It is also settled that the detention order can be passed against a person who is already in custody provided detaining authority is satisfied that there is cogent material for passing such an order. 9. In Surya Prakash Sharma v. State of U.P., 1994 SCC (Cr.) 1691, the Hon’ble Supreme Court in para 5 has held that:- “……….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 must show that (i) the detaining authority was aware of the fact that the detenue was 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 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 that 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.” The detaining authority has to disclose the compelling reasons if the reasons are not disclosed the impugned order suffers for non-application of mind. Grounds of detention indicate the awareness of the detaining authority that the detenu was in custody of the respondents at the time of directing his preventive detention. Grounds of detention indicate the awareness of the detaining authority that the detenu was in custody of the respondents at the time of directing his preventive detention. The detaining authority has not brought on record any cogent material that ordinary law of land is not sufficient to deter the detenue from such activities. Such subjective satisfaction of the detaining authority cannot, therefore, be said to be proper and justified...” The case of the detenue is fully covered by the judgment (supra). Respondents have not shown any material to make out that the ordinary law is not enough to prevent the detenu despite the fact that the detenue was already taken into custody for alleged commission of offence under Section 13 of Unlawful Activities Act. The subjective satisfaction arrived at, under such circumstances cannot be said to be proper and justified. The detention order, therefore, deserved to be quashed.” 10. The detenu has also assailed this order on the ground that the earlier order of detention i.e DMS/PSA/38/2018 dated 24.12.2018 passed by District Magistrate, Srinagar was challenged in HCP No. 10/2019 and the same was quashed. This order of detention is based on identical grounds and same cannot form basis the impugned order of detention, as such, is vitiated as there are no fresh grounds. Perusal of HCP No. 10/2019 reveals that the contents of the grounds of detention in both the detention orders remain same with minor additions without considering the fact that the detenu remained in custody all along. Once the detention order based on the grounds of detention is quashed, the said order should not be taken into consideration either as a whole or in part for passing a fresh order of detention. 11. In Chhagan Bhagwan Kahar v. N. L. Kalna & ors., AIR 1989 SC 1234 , it was held as under :- 12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subsequent order. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subsequent order. A fortiori when a detention order is quashed by t he Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even alongwith the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order. 13. In Jahangirkhan Fazalkhan Pathan V. Police Commissioner, Ahmedabad and another, AIR 1989 SC 1812 , Hon’ble Supreme Court has held as under: “………… it is therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered ……” 14. The detaining authority has not shown any awareness to the fact that the detenu was detained earlier vide detention order dated 24.12.2018 and the same was quashed by this Court in HCP No. 10/2019 vide order dated 27.05.2019. This reflects the non-application of the mind of the detaining authority while passing the order of detention and, therefore, the impugned order is vitiated. 15. In view of the aforesaid discussions without referring to the other grounds, this petition is allowed, the impugned detention order No. DMS/PSA/49/2019 dated 08.08.2019 of Bashir Ahmad Bhat S/o Mohammad Abdullah Bhat is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 16. Disposed of in the aforesaid terms.