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2020 DIGILAW 550 (JK)

Zahid Ahmad Rather v. State of J&K

2020-10-23

SINDHU SHARMA

body2020
Judgment Sindhu Sharma, J.—The present Habeas Corpus Petition has been filed against the order of detention No. 14-DMK/PSA of 2019 dated 15.04.2019 passed by the District Magistrate, Kupwara, detaining Zahid Ahamd Rather S/o Ghulam Hassan Rather under section 8(1)(a)(i) read with Clause (ii) of sub-section (2) of Section 8 of the Jammu and Kashmir Public Safety Act, 1978, for preventing him from acting in any manner prejudicial to the security of the State. The detenu has challenged this order of detention through his uncle Abdul Majeed Rather. 2. The case set up in the petition is that the detenu was arrested by the Police without any justification and cause in the month of July, 2018 and thereafter taken him to Police Station, Lalpora where he was purportedly involved in FIR No. 80/2018 under Sections 7/25 Arms Act and 13 ULA(P) Act. The detenu while in custody was detained by the District Magistrate, Kupwara vide order dated 22.09.2018. This order of detention was questioned by the detenu in HCP No. 321/2018 and the detention order was quashed vide order dated 15.03.2019. The detenu was again taken in preventive detention vide order dated 15.04.2019 which is assailed in this petition. 3. This order of detention dated 15.04.2019 has been assailed by the detenu on the grounds; that (i) the detenu was detained earlier vide order dated 22.09.2018 and the same was quashed in HCP No. 321/2018 and he has again been detained on the same set of allegations vide the impugned order dated 15.04.2019. (ii) the Detaining Authority has not shown any awareness of the earlier detention or its quashing by the High Court and the same has not been reflect in the grounds of detention, as such, the impugned order of detention is vitiated; (iii) all the relevant material relied upon by the Detaining Authority, while passing the impugned order of detention has not been communicated to the detenu; (iv) the Detaining Authority has not given any cogent and compelling reasons have been given for passing the order of detention when the detenu was already in custody; and (v) the detenu is not an English literate person and can understand only Urdu & Kashmiri languages but the translated copy of the same has also not been furnished to the detenu to make an effective representation against the detention. 4. Respondents have filed counter affidavit as well as produced the detention record. 4. Respondents have filed counter affidavit as well as produced the detention record. 5. Mr. Sajjad Ashraf, learned GA appearing on behalf of the respondents, submits that the detenu was detained under the provisions of the Jammu and Kashmir Public Safety Act, 1978 in pursuance of the order dated 15.04.2019. He further submits that the detenu was involved in FIR No. 80/2018 under Sections 7/25 Arms Act and 13 ULA(P) Act. All the statutory requirements and constitutional guarantees were provided to the detenu. The detenu was also provided all the material relied upon by the Detaining Authority and was informed of his right to make an effective representation against his detention. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority, while passing the order of detention has been communicated to the detenu. 6. Heard learned counsel for the parties and perused the record. 7. The detenu was earlier detained in terms of the order of detention dated 22.09.2018 which was questioned by him in HCP No. 321/2018 and this Court vide order dated 15.03.2019 quashed the said detention order. The detenu was again detained vide impugned order dated 15.04.2019, but this vital fact of the detenu’s earlier detention and quashing of the same has neither been considered nor reflected by the Detaining Authority, while passing the detention order. The Detaining Authority has to take into consideration all the material facts which were necessary before arriving at a decision by the Detaining Authority, however apparently, the same were not placed before it, therefore, the subjective satisfaction arrived at by the Detaining Authority for want of such consideration is vitiated. 8. In Asha Devi Wife of Gopal Ghermal Mehta vs K. Shiv Raj, Addl. Chief Secretary to the Govt. of Gujarat & anr, (1979) 1 SCC 222 , Hon’ble Apex Court has held as under :- “If material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal. The detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order.” 9. The Detaining Authority having failed to consider this important fact which reflects total non-application of mind of the Detaining Authority, as such, the detention is vitiated. 10. It is next submitted that the detenu was already in custody at the time of passing of the impugned detention order and no cogent or compelling reasons have been given for taking him again in preventive detention. No doubt the Detaining Authority can order detention of a person who is already in custody but the authority must be satisfied that compelling and cogent reasons for the same. Absence of such reasons vitiates the detention. 11. It is quite relevant to quote Para-5 of the judgment rendered in Surya Prakash Sharma vs. State of U.P., 1994 SCC (Cr.) 1691, by the Hon’ble Supreme Court:- “……….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. 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.” 12. Similarly, in Farooq Ahmad Sheikh V. State of J&K, 2017(2) SLJ 681, the court has also held that: “13. Testing the instant case on the touch stone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of the JKPSA, when he was already in the custody of the police authorities. His custody in police for the offences stated above, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that if the detenue applies for bail, he may succeed in seeking his release but this apprehension of the detaining authority could have been guarded against zealously by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to assail the order(s) in the higher forum. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail. It cuts at the very root of the State action. The State could have taken recourse to the ordinary law of the land.” 13. In view of the settled position of law as stated above and for the aforesaid reasons, there is no need to advert to other grounds raised in this petition. It cuts at the very root of the State action. The State could have taken recourse to the ordinary law of the land.” 13. In view of the settled position of law as stated above and for the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed, the impugned detention order No. 14-DMK/PSA of 2019 dated 15.04.2019 detaining Zahid Ahamd Rather S/o Ghulam Hassan Rather, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, if he is not required in any other case. 14. Detention record be returned to learned counsel for the respondents by the Registry forthwith.