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2021 DIGILAW 366 (JK)

Sheeraz Ahmad Sheikh v. State of J&K

2021-07-28

SANJEEV KUMAR

body2021
JUDGMENT : 1. The detenue, Sh. Sheeraz Ahmad Sheikh S/o Ali Mohd. Sheikh R/o Batamuran Wanpora, Shopian, has filed this petition through his brother seeking quashing of the detention order No. DMS/PSA/54/2019 dated 08.08.2019 passed by the District Magistrate, Shopian (“the Detaining Authority”), whereby with a view to prevent him from acting in any manner prejudicial to the security of the State, the detenue has been detained in preventive custody. It has been done by the Detaining Authority in exercise of powers conferred by Section 8 of the J&K Public Safety Act, 1978 (“the Act”). 2. Before adverting to the grounds of challenge taken in this petition, it would be appropriate to briefly delineate the grounds on which the Detaining Authority has ordered the detention of the detenue. Senior Superintendent of Police, Srinagar vide his communication dated 21.06.2019 submitted a dossier containing details of the activities of the detenue to the Detaining Authority with a request to issue a warrant of detention under the provisions of the Public Safety Act. On examination of the dossier, it was found by the Detaining Authority that on 30.03.2019, the detenue was experimenting to prepare, illegally and unlawfully, an explosive device in his rented shop at Shallapora, Batamaloo. The explosive device exploded inside the shop resulting in damage to the said shop and the medicines lying there. Besides, one vehicle bearing Regd. No.JK01A-3747 which was parked outside the said shop was also damaged. For the involvement of the detenue in the aforesaid activity, he was arrested in FIR No.25/2019 under Sections 3/5 Explosive Substance Act, Sections 15 & 16 of Unlawful Activities (Prevention) Act registered at Police Station, Shergari. At the time, when the detention order was passed, the detenue was in custody of the State under judicial remand. On the basis of this solitary incident and registration of FIR against the detenue, he was taken in preventive custody in terms of the impugned order of detention passed by the Detaining Authority after deriving satisfaction that the activities, the detenue was indulging in, would be highly detrimental to the security of the State. 3. On the basis of this solitary incident and registration of FIR against the detenue, he was taken in preventive custody in terms of the impugned order of detention passed by the Detaining Authority after deriving satisfaction that the activities, the detenue was indulging in, would be highly detrimental to the security of the State. 3. The detenue is aggrieved by the action of the Detaining Authority and has assailed the impugned detention order, inter alia, on the ground that the order of detention suffers from total non-application of mind by the Detaining Authority, in that, the detenue, who was arrested in FIR No.25/2019 had been released on bail by the Additional Sessions Judge, TADA/POTA, Srinagar on 02.08.2019 but the Detaining Authority in the grounds of detention, served upon the detune on 09.08.2019, indicated that the detenue was in judicial custody and that there was every likelihood of his being admitted to bail. The impugned order of detention has also been assailed on the ground that during investigation of FIR No.25/2019, the sample of some burnt material was picked up from the spot and sent for forensic examination to the J&K Forensic Science Laboratory, Srinagar and as per the report of the Laboratory, no explosive substance was found in the said sample. It is, thus, submitted that the basis of registration of the FIR, which also became the reason for detaining the petitioner under PSA, was ultimately found to be baseless and false. The petitioner has also taken other usual grounds including the ground that he was not served with the relevant material relied upon by the Detaining Authority and, therefore, was incapacitated to make an effective representation. 4. The respondents have resisted the writ petition by filing reply affidavit of the Detaining Authority. It is submitted that the detention of the detenue, in terms of the impugned order passed by the Detaining Authority, was ordered after fulfilling all the prerequisite requirements. The order of detention was served on the detenue on 09.08.2019 through Sh. Abdul Rashid No.82/GRP of Police Station, Shergari and was handed over copy of the order of detention, grounds of detention including the material relied upon by the Detaining Authority. The order of detention was served on the detenue on 09.08.2019 through Sh. Abdul Rashid No.82/GRP of Police Station, Shergari and was handed over copy of the order of detention, grounds of detention including the material relied upon by the Detaining Authority. The order of detention as well as the grounds of detention were read over and explained to the detenue in the language which he fully understood and as a token of having received the grounds of detention and having understood the contents thereof, the detenue subscribed his signatures on the execution receipt. The detenue was also informed of his right of making representation to the Detaining Authority or to the Government against his detention. It is submitted that the detenue did not choose to make any representation and, therefore, he should not have any grievance that the entire record relied upon by the Detaining Authority was not provided to him and, therefore, he was incapacitated to file an effective representation. It is further submitted by the respondents that in terms of Section 15 of the PSA, the matter was referred to the Advisory Board for its opinion. The Advisory Board, after considering all the material placed before it, opined that there was sufficient cause for detention of the detenue and on the basis of the report of the Advisory Board, the Govt. vide order No.Home/PB-VI/1807 of 2019 dated 13.09.2019 confirmed the order of detention and lodged the detenue in Central Jail, Naini (Prayagraj). 5. In short, it is the case of the respondents that they have complied with all statutory and constitutional provisions and the impugned order of detention does not call for any interference by this Court in exercise of extraordinary jurisdiction vested in the Court under Article 226 of the Constitution of India. 6. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned detention order is not sustainable on more than one ground. The detenue in his petition has specifically claimed that in the only FIR registered against him i.e. FIR No.25/2019, the detenue was bailed out by the Court of competent jurisdiction on 02.8.2019. As a matter of fact, the detenue has placed on record the docket for release of detenue in FIR No.25/2019 issued by the Court of Additional Sessions Judge TADA/POTA, Srinagar. As a matter of fact, the detenue has placed on record the docket for release of detenue in FIR No.25/2019 issued by the Court of Additional Sessions Judge TADA/POTA, Srinagar. There is no rebuttal to this statement of the detenue made in ground No.(iv) of the writ petition. It is, thus, clear that on 08.08.2019, when the order of detention was passed on basis of grounds of detention prepared by the Detaining Authority on the same date, the Detaining Authority was not even aware that the detenue had already been released on bail. The Detaining Authority in the grounds of detention has specifically mentioned that the detenue, on 08.08.2019, was in judicial custody but there was every likelihood of his being admitted to bail. This speaks volume about non-application of mind by the Detaining Authority. 7. Possibly, the relevant material on the basis of which the Detaining Authority was supposed to derive his subjective satisfaction had not been placed before it. Whatever be the reason, lack of awareness on part of the Detaining Authority and failure to consider the relevant material i.e. bail granted to the detenue in FIR No.25/2019 by the competent Court of jurisdiction has vitiated the subjective satisfaction allegedly derived by the Detaining Authority for putting the detenue under preventive detention. Had the relevant material in the shape of bail order and report of Forensic Science Laboratory been brought to the notice of the Detaining Authority, there was every possibility of the Detaining Authority taking a different view in the matter. 8. In view of the aforesaid, I am of the considered view that the impugned order of detention cannot sustain in law and, therefore, deserves to be quashed. Since the grounds on which the detention order is vitiated goes to the root of validity of the detention, therefore, it is not necessary to deal with other grounds of challenge nor it is open to the respondents to rely upon Section 10-A of the PSA to claim that if detention order is issued on more than one ground independent of each other, the detention order does not get vitiated even if one of the grounds is found to be legally unsustainable. 9. For the foregoing reasons, this petition is allowed and the impugned order of detention quashed. The respondents are directed to release the detenue from preventive custody forthwith, if not required in any other case. 10. 9. For the foregoing reasons, this petition is allowed and the impugned order of detention quashed. The respondents are directed to release the detenue from preventive custody forthwith, if not required in any other case. 10. Detention record be returned back to the learned counsel for the respondents.