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2020 DIGILAW 515 (JK)

Mohammad Huzair Bhat v. State of J&K

2020-10-01

SANJAY DHAR

body2020
JUDGMENT By the medium of this petition, veracity and validity of the order of detention bearing No.16/DMB/PSA/2019 dated 11.07.2019, issued by District Magistrate, Baramulla (for brevity “Detaining Authority”), has been assailed. In terms of the impugned order, Shri Mohammad Huzaif Bhat son of Abdul Mohammad Shafi Bhat resident of Mohalla Checki Payeen Saloosa District Baramulla, has been placed under preventive detention and lodged in Central Jail, Kotebhalwal, Jammu. 2) Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the translated version of the documents/grounds of detention has not been provided to the detenue who is a semi-literate person. Petitioner has gone to contend that he has not been informed as to before which authority he had to make a representation. 3) The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit. 4) I have heard learned counsel for parties and I have also gone through detention record. 5) Learned counsel for the petitioner highlighted various grounds while seeking quashment of impugned order but the main grounds that have been argued during the course of arguments are that the detenue was already booked in case FIR No.78/2018 for offences under Section 18, 19 of ULA(P) Act and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive laws. The other ground urged by the petitioner is that there has been non-application of mind on the part of the Detaining Authority as the grounds of detention are more or less a Xerox copy of the dossier. 6) It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. 7) I am supported in my aforesaid view by the judgment of the Supreme Court in the case of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691, wherein the Court has observed as under: “5. 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 state first came up for consideration before a Constitution Bench in Rameshwar Shaw vs District Magistrate Burdwan to eschew prolixity we refrain from detailing all those cases accept that of Dharmendra Sugan Chand Chelawat v. Union of India wherein a three judge Bench after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words: “The decisions referred to above lead to the conclusion that an order for detection 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 detailing 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 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 detenu 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.” 8) It is also settled position of law that a person involved in a criminal case can be detained under the provisions of preventive detention laws provided there are compelling circumstances for doing so otherwise the order of detention becomes unsustainable. In this connection, it is quite apt to quote following observations of the of Supreme Court in T. P. Moideen Koya v. Government of Kerala and ors., 2004 (8) SCC 106 : “……in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenue was likely to be released on bail” 9) Adverting to the facts of the instant case, as per the detention record, FIR No.78/2018 for offences under Sections 18, 19, ULA(P) Act and 3/4 of Explosive Substances Act was registered against the detenue in Police Station Kreeri and he was taken into custody in connection with investigation of the said case. The record further reveals that the detenue was enlarged on bail in terms of the orders passed by the competent court somewhere in the month of July, 2019. The record further reveals that the detenue was enlarged on bail in terms of the orders passed by the competent court somewhere in the month of July, 2019. Excepting the aforesaid FIR, there is no material on record to even remotely show that it was absolutely necessary for the Detaining Authority to detain the petitioner under the provisions of the Jammu and Kashmir Public Safety Act. 10) In the grounds of detention, after referring to the contents of the aforesaid FIR, it has been mentioned that these activities of the detenue are prejudicial to the maintenance of security of State and a potential threat to the security of the State in case the detenue is allowed to remain at large. However, the Detaining Authority has not brought on record any other cogent material or furnished any other cogent ground to show that if the detenue is allowed to remain at large, he will be a potential threat to the security of the State. It appears that the satisfaction of the Detaining Authority that the detenue is a potential threat to the security of the State is solely based on the allegations made in the aforesaid FIR and no other material. 11) As already noted, the Supreme Court in a catena of judgments has clearly held that unless there are compelling circumstances and cogent material before the Detaining Authority for passing a detention order against a person who is already in custody or is facing criminal prosecution in a substantive offence, the Detaining Authority cannot pass an order of detention against such a person. 12) From the perusal of material/record before me, it is clear that the detenue has been shown involved in a substantive offence. When it is so, the Detaining Authority was bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and, as already discussed, there is no such material on record. The impugned order of detention, therefore, cannot be sustained. 13) The other ground urged by the petitioner is that there has been non-application of mind on the part of the Detaining Authority. In the instant case the grounds of detention are more or less a Xerox copy of the dossier. This contention finds support from the material on record. The impugned order of detention, therefore, cannot be sustained. 13) The other ground urged by the petitioner is that there has been non-application of mind on the part of the Detaining Authority. In the instant case the grounds of detention are more or less a Xerox copy of the dossier. This contention finds support from the material on record. The grounds of detention, in this case are, in fact, a replica of dossier with interplay of some words here and there. This exhibits non- application of mind and in the process deriving of subjective satisfaction has become a causality. While formulating the grounds of detention, the Detaining Authority has to apply its own mind. It cannot simply reiterate whatever is written in the dossier. Here it will be apt to notice the observations of the Supreme Court in the case of “Jai Singh and ors vs. State of J&K” ( AIR 1985 SC 764 ), which are reproduced hereunder: “First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father’s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited “The subject is an important member of …….” Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words “the subject is” into “you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi”. Thereafter word for word the police dossier is repeated and the word “he” wherever it occurs referring to Jai Singh in the dossier is changed into ‘you’ in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. Thereafter word for word the police dossier is repeated and the word “he” wherever it occurs referring to Jai Singh in the dossier is changed into ‘you’ in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner.” 14) From a perusal of the aforesaid observations of the Supreme Court, it is clear that the ground of detention and the dossier, if in similar language, go on to show that there has been non-application of mind on the part of the Detaining Authority. As already noted, in the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar wording which shows that there has been non- application of mind on the part of the Detaining Authority. The impugned order of detention is, therefore, unsustainable in law on this ground also. 15) For the afore-stated reasons, the petition is allowed and the order of detention bearing No.16/DMB/PSA/2019 dated 11.07.2019, issued by District Magistrate, Baramulla, is quashed. Further custody of the detenue shall be governed in accordance with the orders of the court of competent jurisdiction in connection with criminal case registered against him. 16) The record, as produced, be returned to the learned counsel for the respondents.