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2023 DIGILAW 575 (JK)

Mehraj-ud-Din Dar. v. Union Territory of J&K

2023-10-04

ATUL SREEDHARAN

body2023
ORDER : 1. The present petition has been filed by the petitioner who is under preventive detention under the provisions of the ‘Jammu & Kashmir Public Safety Act, 1978’. He was arrested by the security forces from his home in January 2022 and detained under Public Safety Act vide order No. DMS/PSA/30/2022 dated 09.04.2022 and is lodged in Kote Bhulwal jail, Jammu. 2. According to the learned counsel for the petitioner, the grounds of detention are vague and the allegations levelled by the detaining authority do not enable the petitioner to make an effective representation and the same can only be defended before the trial court. His challenge to the impugned order has been on three grounds, firstly, vagueness of the grounds of detention do not enable him to make an effective representation. Second is the delay in the execution of the order of detention for more than forty days and third is that the grounds of detention being silent of any compelling circumstance to pass the order of detention while the petitioner was already in judicial custody in FIR case no. 327/2021 of Police Station Pattan. The charges inter alia against the petitioner in the aforementioned FIR are under Section 16 & 20 of the Unlawful Activities Prevention Act. The allegation therein against the petitioner was that he had lobbed two hand grenades along with the co-accused causing injuries to two personnel of the CRPF and the four civilians. Learned counsel for the State has also submitted in addition to the above that during the course of investigation the 27 memorandum of the petitioner led to the recovery of the two hand grenades which directly connect him to the case. 3. As regards the first contention put forth by the learned counsel for the petitioner that the grounds of detention are vague, this Court examined Annexure-1 to the petition which is the grounds of detention. It would be necessary to briefly reproduce here the grounds of detention. According to the respondent-UT, the petitioner came into contact with one Mohammad Afzal Lone, an LeT militant and under his motivation, was working as an OGW. It would be necessary to briefly reproduce here the grounds of detention. According to the respondent-UT, the petitioner came into contact with one Mohammad Afzal Lone, an LeT militant and under his motivation, was working as an OGW. It is further mentioned therein that the petitioner allegedly started working with the LeT & TRF cadres and indulged in various activities which facilitate strengthening of network of the LeT outfit and provided shelter to the cadres of the said outfit (no specific instances or manner of facilitating shelter the LeT network is mentioned). Thereafter it is also alleged in the grounds that the petitioner carried out the activities with the fair degree of success for a long period and evaded being noticed (yet again the period during which he has acted is not mentioned and what these activities which he carried out with a fair degrees of success, is also not mentioned). Thereafter it is alleged that the petitioner along with his associates lobbed a grenade at the national highway Palhallan, Pattan on 17.11.2021, in which two personnel of the CRPF and four civilians were injured (this grounds is precise giving a reasonable opportunity to the petitioner to respond). Thereafter, the ground of detention records the fact that case FIR No. 327/2021 was registered against the petitioner under Section 307 IPC, 7/27 Arms Act and 16 & 20 of the Unlawful Activities Prevention Act at Police Station Pattan and upon his disclosure two hand grenades were recovered from an orchard at Wussan Khoie which were kept there for carrying out the attacks on security forces (this ground is also precise giving a reasonable opportunity to petitioner to respond). Thereafter, it is also alleged that the petitioner carried out various anti-national activities like facilitating the strengthening of the LeT network and that he was in touch with the terrorists of the LeT and implementing their instructions on ground for carrying out anti-national activities and that reports from various field formations suggests that the petitioner is OGW of LeT/TRF indulging in anti-national activities including transportation of the militants and their associates from one place to another, along with arms and ammunitions and motivating the youth to join militant ranks( again the ground is vague and lacks in precision with regard to date and persons in order for the petitioner to give a precise response). 4. 4. Learned counsel for the petitioner has argued that though the grounds of detention had taken into account that the petitioner is presently under judicial remand in sub-jail Baramulla, there is no recording of a compelling circumstance which dwelt in the mind of detaining authority as to why the order of detention must be passed notwithstanding the fact that the petitioner is in judicial custody in the aforementioned case. Learned counsel for the petitioner has also argued that since the petitioner was charged under Section 16 & 20 of the Unlawful Activities Prevention Act and the prohibition of bail being granted, where there is a prima facie case against the petitioner as provided under Section 43 D of the Unlawful Activities Prevention Act, it was impossible for the petitioner to be granted bail in the FIR against him and therefore, the impugned order is bad in law. He has referred to a Judgment of the Supreme Court in “Dharmendra Sughachand Chelawat Vs. Union of India 1991 SCC 746” which has been referred to and discussed later in this order. 5. Learned counsel for the Union Territory of J&K on the other hand has argued in support of the impugned order. He has argued that the law is well settled that even if the detenue is in judicial custody in relation to a criminal case, an order of detention can still be passed against him. He has referred to a judgment of the Supreme Court in “Hardhan Shah Vs State of West Bengal (1975) 3 SCC 198 ”, with specific reference to paragraph 34 of the Judgment. The said judgment was passed by a Constitution Bench where the Supreme Court held that merely because a detenue is liable to be tried in a criminal court for the commission of an offence or to be proceeded against for preventing him from committing of an offence, would not by itself debar the Government from taking an action for his detention under the act. It also held that the fact, that the Police arrested the person who later was enlarged on bail, but steps have been taken to prosecute him under the Code of Criminal Procedure, would not be a bar on the District Magistrate in issuing an order of preventive detention. It also held that the fact, that the Police arrested the person who later was enlarged on bail, but steps have been taken to prosecute him under the Code of Criminal Procedure, would not be a bar on the District Magistrate in issuing an order of preventive detention. Most importantly, the Supreme Court held that where the person is actually in custody at the time when an order of detention is passed against him and he is not likely to be enlarged on bail, it may be contended that there could be no satisfaction on the part of detaining authority as to likely-hood of such person indulging in activities which would jeopardise the security of the State or public order. And lastly it holds that the mere circumstances that the detention order is passed during the pendency of the prosecution will not violate the order of detention and that the order of detention is a precautionary measure based on reasonable prognosis of future behaviour of a person based on his past conduct in the light of the surrounding circumstances. 6. Learned counsel for the State has also vehemently argued that the petitioner is a person with an extremist ideology and that unless and until he is proceeded under the provisions of the Public Safety Act, he cannot be transferred to any other jail. The learned counsel for the UT has not provided any Judgment or provision of law to support his contention. It is also contended that it is only under the Public Safety Act that a detenue may be shifted for securing the ends of the Act to a jail outside the State. This Court is of the opinion that the provision to do so may be available under the Public Safety Act, but the mere requirement to do so, cannot be a justifiable ground for passing an order under PSA. For an order to be passed under the Public Safety Act, the subjective satisfaction of the District Magistrate must reflect that if such an order is not passed, the detenue can be a threat to the national security or public order. These are the only two factors that can give rise to the subjective satisfaction required in the detenue’s detention under the Act. 7. Heard learned counsel for the parties, perused the record of the case and the Annexures to the petition and the reply. 8. These are the only two factors that can give rise to the subjective satisfaction required in the detenue’s detention under the Act. 7. Heard learned counsel for the parties, perused the record of the case and the Annexures to the petition and the reply. 8. The issue before this court is extremely small, it only needs to consider whether the impugned order can be sustainable in the eyes of the law especially on account of the petitioner being already in incarceration for the offences, inter alia under the Unlawful Activities Prevention Act. Undoubtedly, such a power to pass an order of detention against a person who is already in judicial custody undergoing a criminal prosecution can be sustained in view of the Judgment relied upon by the learned counsel for the State in “Hardhan Saha Vs. State of West Bengal (1957) 3 SCC 198,” however, the subjective satisfaction must be based upon the compelling circumstances in a case where a detenue is already in judicial custody pending trial. Circumstances, where a detaining authority is of the opinion that the detenue may get the benefit of bail in the near future from the trial court would be a germane reason for passing an order of detention under Public Safety Act. However, in this particular case the fact that the petitioner is being tried for offences under the Unlawful Activities Prevention Act where the bar of Section 43 (d) looms large, the probability of the petitioner being granted bail by the trial court is very unlikely. Coupled with the fact that the detaining authority has not even recorded the compelling circumstances, due to which the said order has been passed, let alone consider the fact that the petitioner would find it nearly impossible to be a beneficiary of a bail in the light of Section 43 (d) of the Unlawful Activities Prevention Act. 9. Coupled with the fact that the detaining authority has not even recorded the compelling circumstances, due to which the said order has been passed, let alone consider the fact that the petitioner would find it nearly impossible to be a beneficiary of a bail in the light of Section 43 (d) of the Unlawful Activities Prevention Act. 9. Under the circumstances, and in view of the Judgment of the Supreme Court, referred to in para-4 supra, where the Supreme Court has held that to sustain an order of detention of a person who is already under judicial custody pending criminal trial could only be legitimised where the order of detention or the grounds of detention specifically refer to the compelling circumstances of passing that order of detention inspite of the fact that the detenue was under judicial custody in the criminal case, and the absence of such compelling circumstances in the grounds of detention, the petition deserves to be allowed. 10. Therefore in view of what has been argued before this court and considered as hereinabove, the petition is allowed and the impugned order is quashed.