Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 607 (JK)

Raashid Ahmad Shah v. State of J&K

2020-11-19

SANJEEV KUMAR

body2020
Judgment Sanjeev Kumar, J.—Raashid Ahmad Shah (the detenue), through his father, namely, Bashir Ahmad Shah, has assailed his detention ordered by District Magistrate, Shopian (the detaining authority) in terms of its order bearing No.43/DMS/PSA/2019 dated 10.08.2019. The detenue has been detained with a view to preventing him from acting in any manner prejudicial to the security of the State/Country. As is apparent from the grounds of detention, served upon the detenue, the detention of the detenue is prompted by the Senior Superintendent of Police, Shopian, who vide his No.CS/D-1/2019/3875 dated 10.08.2019, has reported the prejudicial activities of the detenue to the detaining authority in the form of a dossier. As per the police dossier, the detenue has read up to B.A 2nd year and left the Pulwama Degree College due to poor family economical resources. He came in contact with elements whose only aim and object was to create law and order problem and foment trouble in the District of Shopian. The detenue had been providing logistic support to the militants of HM outfit for carrying out terrorist activities in the district. It has also been noticed in the dossier that the detenue has tremendous motivational appeal which he had been oftenly using for radicalizing the vulnerable innocent youths to either join militancy or turn them into hardcore stone pelters. There is also reference to similar activities of the detenue including his association with Amir Amin Bukhari and arranging explosive material by illegal means for planting IEDs to carry out terrorist activities. It is in view of the aforesaid activities, the detaining authority arrived at satisfaction that with a view to prevent the detenue from acting prejudicial to the security of the State, it was necessary to detain him under Section 8 of the J&K Public Safety Act. There is reference to three different FIRs at the top of grounds of detention but there is no mention thereof in the body of grounds of detention. It is thus not discernible as to whether the detenue is involved in the aforesaid FIRs or not. However, the stipulation in the penultimate para in the grounds of detention that the detenue along with his associate Amir Amin Bukhari was apprehended along with explosive packs raises a unrebuttable presumption that the FIRs indicated on the top of the grounds of detention are those in which the detenue is involved. 2. However, the stipulation in the penultimate para in the grounds of detention that the detenue along with his associate Amir Amin Bukhari was apprehended along with explosive packs raises a unrebuttable presumption that the FIRs indicated on the top of the grounds of detention are those in which the detenue is involved. 2. The impugned order is assailed, primarily, on the that at the time of passing of the order of detention, the detenue was already in custody of State and had not even applied for bail and, therefore, it was necessary for the detaining authority to indicate the compelling circumstances for passing the impugned detention order. 3. On being put on notice, the respondents appeared before the Writ Court and filed their detailed objections as also produced the relevant detention record. The detention of the detenue was sought to be justified on the grounds enumerated in detail in the grounds of detention served upon the detenue. Involvement of the detenue in as many as three FIRs and the detail of the activities narrated by Senior Superintendent of Police in the dossier placed before the detaining authority was cited as the relevant material on the basis of which the detaining authority arrived at subjective satisfaction that remaining at large of the detenue was highly prejudicial to the security of the State. 4. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned detention order is not sustainable in the eye of law. Admittedly, on the date the detention of the detenue was ordered, the detenu was already in jail and was involved in as many as three FIRs, two registered in the year 2018 and one registered in the year 2019. It is also not disputed that the detenue had not applied for bail nor was there any likelihood of the bail being granted. The detaining authority has though shown its awareness that the detenue is under custody of the State in connection with the commission of substantive offences yet decided to place the detenue under preventive detention by invoking powers under Section 8(a) of the J&K Public Safety Act, 1978. It was thus incumbent upon the detaining authority to disclose the compelling reasons for resorting to such action. It was thus incumbent upon the detaining authority to disclose the compelling reasons for resorting to such action. If the idea of issuing the detention order was to prevent the detenue from acting in any manner prejudicial to the security of the State, that objective stood already achieved with the arrest of detenue in connection with commission of substantive offences for which three different FIRs were registered in the year 2018/2019. In these circumstances, the detaining authority could not have absolved itself of the responsibility to, at least, indicate the compelling circumstances for taking such decision. In that view of the matter, the detention of the detenue, when he was already in police custody, cannot be said to have been made because of any undisclosed compelling reasons and, therefore, cannot be justified in view of the law laid down by the Supreme Court in Surya Prakash Sharma v. State of U. P. and others, 1994 Supp (3) SCC 195, wherein Supreme Court while dealing with a similar question held thus: “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 him from engaging in such activities.” 6. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority’s awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in the grounds of detention that if the aforesaid Surya Prakash 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.” 5. For the foregoing, petition is allowed. Impugned detention order is quashed and the respondents are directed to release the detenue from the preventive custody forthwith, if not required in connection with any other case.