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2022 DIGILAW 174 (JK)

Ayash Aziz Dar v. UT of Jammu and Kashmir

2022-04-20

SANJEEV KUMAR

body2022
JUDGEMENT/ORDER : 1. The petitioner, who is under preventive detention, has filed this petition through his brother Mohammad Younis Dar seeking quashing of Order No. 38/DMP/PSA/20, dated 09.11.2020 ('the detention order') issued by the District Magistrate Pulwama ('the Detaining Authority') in exercise of powers conferred under section 8 of the Jammu and Kashmir Public Safety Act, 1978 ('the Act' hereafter). The detention order is issued by the Detaining Authority to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the security of the State. 2. The impugned order has been assailed by the detenu primarily on the following grounds:- (i) That the grounds of detention, on the basis of which impugned order has been passed, were never served upon the detenu nor the material relied upon in the grounds of detention was supplied to the detenu; (ii) That the representation made by the detenu on 14.11.2020 seeking revocation of the detention order has not been considered; (iii) That the detenu was in custody in FIR No. 35/2020 under sections 13, 18, 20 and 39 of ULAP Act at the time of detention and the Detaining Authority has not indicated any compelling reasons for issuance of the order of detention; (iv) That the order of detention is an outcome of total non-application of mind by the Detaining Authority. 3. The petition is contested by the respondents. In the reply affidavit filed by the Detaining Authority, it is submitted that pursuant to the recommendations made by the police, supported by dossier containing relevant material, the Detaining Authority formed an opinion that it is imperative to put the petitioner under preventive detention with a view to deter him from acting in any manner which is prejudicial to the security of the State. It is the stand of the Detaining Authority that not only the detenu was served with the copy of the detention order, Communication letter and grounds of detention, he was also informed about his right to submit representation against his detention. Regarding the allegation of non-application of mind, it is contended that the grounds of detention clearly and unambiguously indicate the trail of activities of the detenu which are suggestive of the fact that detenu is an incorrigible perpetrator of terror and, therefore, allowing him to remain at large is prejudicial to the security of the State. Regarding the allegation of non-application of mind, it is contended that the grounds of detention clearly and unambiguously indicate the trail of activities of the detenu which are suggestive of the fact that detenu is an incorrigible perpetrator of terror and, therefore, allowing him to remain at large is prejudicial to the security of the State. There is, however, no whisper in the reply affidavit by the Detaining Authority as to whether the Detaining Authority or the Government received the representation claimed to have been made by the detenu on 14.11.2020 and, after receipt, how the same has been dealt with by the competent authority. The reply affidavit also does not indicate the compelling reasons to put the detenu under preventive custody when he was already in the judicial custody with the State in case FIR No. 35/2020. 4. The matter was heard and reserved on 4th of April, 2020 and Mr. Asif Maqbool, learned Dy. A.G. was directed to produce the original record within one week. It is over two weeks now the learned Government counsel has failed to produce the record. The matter was thus considered in the absence of the record. 5. Having heard the learned counsel for the parties and perused the record, I am of the view that the impugned order of detention cannot sustain for more than one reason. 6. The detenu has placed on record a copy of the representation against his detention made to the District Magistrate Pulwama on 14.11.2020, which, as per the receipt appended, is received by the office of the Detaining Authority on 16.11.2020. As is apparent from the reading of the reply affidavit filed by the Detaining Authority, the said representation moved by the detenu has not been considered and disposed of. In the face of the clear averments made in the petition, supported by documentary evidence and in the absence of rebuttal by the Detaining Authority, this Court is left with no option but to accept the contention of the detenu that his representation, though made in time, was not considered by the Detaining Authority or by the Government. 7. It is trite that right to make representation against the detention given to the detenu is a fundamental right and deprivation whereof vitiates the preventive detention. 7. It is trite that right to make representation against the detention given to the detenu is a fundamental right and deprivation whereof vitiates the preventive detention. Under Article 22(5) of the Constitution of India, a person detained in pursuance of an order of preventive detention is entitled to be communicated the grounds on which his detention has been ordered and shall also be entitled to be afforded earliest opportunity of making a representation against the order. Any infraction of this provision would render the detention bad in eye of law and violative of Article 22 of the Constitution of India. 8. That apart, from a perusal of the grounds of detention it clearly comes out that on the date of passing of the impugned order of detention, the detenu was in judicial custody in case FIR No. 35/2020 under sections 13, 18, 20 and 39 of ULAP Act registered in Police Station, Litter. Once the detenu was already in custody of the State, there apparently was no necessity to issue the impugned order of detention unless there were compelling reasons to do so. The Detaining Authority has not indicated any such compelling circumstances or reasons either in the grounds of detention or in the reply affidavit filed in opposition to this petition. The legal position in this regard is fairly well settled. In Binod Singh v. District Magistrate Dhanbad, 1986 (4) SCC 416 , Hon'ble the Supreme Court has laid down as under:- "If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case, when the actual order of detention was served upon the detenu the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. If there were cogent materials for thinking that the detenu might be released, then these should have been made apparent". 9. In the subsequent case of N. Meera Rani v. Government of Tamil Nadu, 1989 (4) SCC 418 , the legal position was summed up by the Hon'ble Supreme Court in the following words:- "We may summarise and reiterate the settled principle. 9. In the subsequent case of N. Meera Rani v. Government of Tamil Nadu, 1989 (4) SCC 418 , the legal position was summed up by the Hon'ble Supreme Court in the following words:- "We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not, needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position". 10. There are numerous subsequent decisions reiterating the legal position that an order of detention 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 Detaining Authority was aware of the fact that the detenu was already in detention; and (ii) there were compelling reasons justifying such detention despite the fact the detenu was already in detention. 11. The expression 'compelling reasons' in the context of making an order of detention of a person already in custody, employs that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in near future; and (b) taking into account the antecedents of the detenu it is likely that after his release he would indulge into prejudicial activities and it is necessary to prevent him from engaging in such activities. 12. 12. When the facts of the instant case are viewed in the light of the legal position adumbrated herein above, it is beyond any pale of doubt that the Detaining Authority, though has shown awareness with regard to the detenu being in judicial custody of the State, has yet failed to indicate any compelling reasons or circumstances, necessitating issuance of the impugned order of detention. The Detaining Authority has nowhere, either in the grounds of detention or in the affidavit filed by him, indicated that there was any apprehension that the detenu would get bail in FIR No. 35/2020 and, once at large, will again indulge in subversive activities. 13. It needs to be marked that the detenu, at the time of issuance of detention order, was in judicial custody in a case under Unlawful Activities Prevention Act which lays down very stringent conditions for bail. 14. Both these grounds go to the root of the detention and vitiates the order of detention in toto and, therefore, the plea of the learned counsel for the respondents, based on the judgments of 2020 (1) JKJ 34 [HC] Amir Shafi Bhat v. State & Anr. and Waseem Raja v. State & Anr., is without any substance. 15. A Division Bench of this Court has already dealt with the issue in the case of Nissar Ahmad Qazi v. State of J&K [LPA (HC) 06/2019 decided on 27.11.2020]. The Division Bench has drawn distinction between the grounds of detention on the basis of which a citizen is detained under preventive detention laws and the grounds of challenge urged by such citizen to assail his detention. What is envisaged under section 10A of the J&K Public Safety Act is a situation where detention is ordered on two or more grounds which are separable and independent of each other. In these circumstances, the Section provides that the order of detention shall not be deemed to be invalid or inoperative merely because one or some of the grounds is/are vague, non-existent, nonrelevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever. 16. For the foregoing reasons, this petition is allowed. The impugned order of detention No. 38/DMP/PSA/20, dated 09.11.2020 issued by District Magistrate, Pulwama is quashed. The detenu is directed to be set at liberty from the preventive detention provided he is not required in any other case.