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2023 DIGILAW 597 (JK)

Umar Gayas Mir v. Union Territory of J&K

2023-10-07

VINOD CHATTERJI KOUL

body2023
JUDGMENT : 1. Through the medium of this writ petition, the petitioner prays for quashment of Order no.DIVCOM-“K”/44/2023 dated 27.04.2023 (impugned detention order) passed by Divisional Commissioner, Kashmir – respondent no.2 (for short “detaining authority”), whereby detenu, namely, Umar Gayas Mir S/o Gayas-U-Deen Mir R/o Saloora Ganderbal,District Ganderbal, has been placed under preventive detention with a view to prevent him from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the “Act”) and directing his lodgement in Central Jail, Kot Bhalwal, Jammu. 2. Respondents have filed counter affidavit, insisting therein that the activities of detenu in indulging in narcotic trade are highly prejudicial and will cause adverse affect of drug abuse in the society and his remaining at large involves a great risk to the health and welfare of the people of the area. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 3. I have heard learned counsel for parties and considered the matter. 4. The case set up by petitioner in this petition is that the detenu was arrested in the month of January 2022 in connection with case FIR No.04/2022 under Section 8/21-29 NDPS Act by Police Station, Ganderbal. In the said FIR, the detenu filed an application for grant of bail before this Court, which was registered as Bail App no.22/2022. Objections to the said application were filed by other-side. This Court, after considering pleadings of the parties, vide Order dated 01.06.2022 granted bail in favour of detenu. It is stated that this fact of grant of bail has neither been mentioned in the grounds of detention nor did they file the appeal against the said bail order. It is averred that detenu was arrested and implicated in FIR no.04/2022 in January 2022 and subsequently he was admitted to bail by this Court and released from custody. It is stated that this fact of grant of bail has neither been mentioned in the grounds of detention nor did they file the appeal against the said bail order. It is averred that detenu was arrested and implicated in FIR no.04/2022 in January 2022 and subsequently he was admitted to bail by this Court and released from custody. Post his release on bail, no fresh activity has been attributed to him, as such, alleged activities have lost proximity with the requirement of passing an order of detention as there is more than one year delay between alleged activity and order of detention and, therefore, delay between alleged activity and order of detention has rendered detention order illegal. 5. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the grounds that there has been non-application of mind on the part of the detaining authority as the detenu has already been admitted to bail by this Court in FIR No.04/2022, but this fact has not been mentioned in the grounds of detention; that although a representation was submitted against the detention by the detenu through his father before the respondents yet the same was not considered rendering the detention order unsustainable in law; that grounds of detention appears to be replica of dossier which unequivocally reflects and shows non-application of mind on the part of detaining authority; that the material relied upon by detaining authority has not been given to detenu to enable him to make an effective representation against his detention. 6. With respect to contention of petitioner that bail granted in favour of detenu has not been mentioned in grounds of detention, the same has force. Detenu has been given bail by this Court vide order dated 01.06.2022 in case FIR no.04/2022 P/S Ganderbal. This fact is not coming forth from perusal of grounds of detention. Non-mentioning of this important fact in the grounds of detention, exhibits non-application of mind on the part of detaining authority. This also reflects that detaining authority has not meticulously examined the material record available before him while passing the impugned order of detention which renders the same unsustainable in law. 7. The law on the subject is trite. Non-mentioning of this important fact in the grounds of detention, exhibits non-application of mind on the part of detaining authority. This also reflects that detaining authority has not meticulously examined the material record available before him while passing the impugned order of detention which renders the same unsustainable in law. 7. The law on the subject is trite. If detaining authority is apprehensive that in case detenu is released on bail he may again carry on his criminal activities, then in such situation, the authority should oppose the bail application and, in the event, bail is granted, the authority should challenge such a bail order in the higher forum and that merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed. Para 24 of judgment in Sama Aruna v. State of Telangana and another, AIR 2017 SC 2662 , reads as under: “24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav V. District Magistrate, Etah and Ors., this court observed as follows: “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the Nation Security Act should not ordinarily be passed.” 8. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the Nation Security Act should not ordinarily be passed.” 8. When in the present case, grounds of detention are analysed, it would nowhere mention whether detenu was after his apprehension in connection with case FIR no.04/2022 released on bail by this Court, which reflects and depicts non-application of mind on the part of detaining authority. Thus, there is no compelling reason stem out from grounds of detention to show that detenu was likely to be released from custody in near future and taking into account the nature of antecedent activities of detenu, it was likely that after his release from custody he may indulge in prejudicial activities and it was necessary to detain him in order to prevent him from engaging in such activities. 9. Grounds of detention, on its bare perusal, do not mention that detaining authority was aware of the fact that detenu had already been released on bail by this Court. This clearly indicates and shows total absence of application of mind on the part of detaining authority while passing impugned order of detention. In that view of matter, impugned detention order is vitiated. 10. The next ground projected by the petitioner is that the detenu submitted a representation against his detention through his father which has not been considered by the respondents. 11. A representation, as is apparent from perusal of file, has been made by detenu through his father which, seemingly, has been received by the office of Divisional Commissioner, Kashmir vide Receipt no.2257750 dated 02.05.2023. The learned counsel has specifically stated in his petition that detenu has made a representation before detaining authority through his father, but same has not been placed considered by respondents. These assertions have gone unrebutted as there is no denial in the counter affidavit. The failure on the part of the respondents to place the representation submitted by the detenu before the Advisory Board and its consequent non-consideration indisputably amounts to violation of the provisions of Article 225 (5) of the Constitution. A reference in this behalf to the judgement of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979(4) SCC 559 , would be advantageous. In Para 4 of the aforesaid judgement, the Court observed as under:- “4. A reference in this behalf to the judgement of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979(4) SCC 559 , would be advantageous. In Para 4 of the aforesaid judgement, the Court observed as under:- “4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads: When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This Sub-Article provides, inter alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution.” 12. From the above legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law. 13. For the foregoing reasons, the petition is disposed of and detention Order Order no.DIVCOM-“K”/44/2023 dated 27.04.2023, passed by Divisional Commissioner, Kashmir, is quashed. Respondents are directed to release the detenu forthwith from the preventive custody, provided he is not required in any other case. 14. Disposed of.