Abdul Hai Lone vs State and Others

Sunil Hali, J.—This Court vide its order dated 15.10.2009 quashed the detention order No. 72-DMS/PSA/2009 dated 30.6.2009 passed

by the District Magistrate, Shopian of detenu namely, Abdul Hai Lone S/o Abdul Aziz lone R/o Village Kachdoora, Shopian and directed to

release him forthwith unless he is not required in any other case was to be followed by reasoned order.

The grounds of detention reveal that detenue is an associate of Molvi Tariq Amin Shah who is a coordinator, close associate of J & K Hurriyat

Conference. It is stated that in view of ongoing agitation in District Shopian, he has arranged anti-National protests, demonstrations and disturbing

the tranquility and peace through out the jurisdiction of district Shopian. He along with his associates instigate the General public especially youth of

the area to carry out demonstrations against the Government and also resort to stone pelting upon the Government establishments, vehicular traffic

and erect blockades on the main roads to restrict the traffic movement. It further reveals that on 30.5.2009 a violent mob headed by accused

pelted stones upon the District hospital Shopian and damaged the equipments of said hospital and also inflicted injuries upon the police personnel

for which case FIR No. 102/2009 u/s 148, 451, 336, 427, 353, 332/PRC stands registered in police Station, Shopian. On 01.06.2009, a violent

mob led by him assembled in Shopian and raised Anti-National and pro-freedom slogans. The said mob turned violent and pelted stones upon the

Fire Station Shopian, due to which huge damage has been caused to the said Fire Station against case FIR No. 105/2009 u/s 247, 248, 336, 451,

427 RPC stands registered in police Station Shopian. In addition to the above, he has given unlawful directions to his associates in particular and

public in general and usually emphasizes upon the people to continue the struggle against the unity and integrity of the State established by law. It is,

in these circumstances that the respondents have detained the detenue u/s 8 of the J & K Public Safety Act, 1978.

Mr. Iqbal, appearing for the petitioner has questioned the order of detention on the following grounds:

a) That the grounds of detention have not been served to the detenue and only copy of detention order is received by him, which debars the

detenue in making representation as contemplated under Article 22(5) of the Constitution of India.

b) That the detenue was in custody at the time of passing of the order of detention and had not applied for bail, as such, order of detention is bad

in law.

Reply has been filed by the State-respondent. The stand of the respondents is that detenue has been indulging in the activities, which are

prejudicial to the security of the State. The grounds of detention of the petitioner are unambiguous and same is reflected from the fact that detenu

has been involved in the activities, which are prejudicial to the maintenance of security of State. All the aspects have been considered by the

detaining authority while detaining the detenu under the provisions of PSA. It is further stated that non-supply of the material though having a

passing reference in the grounds of detention in no way makes an order of detention as invalid in view of law laid down by the Hon'ble Apex Court

in case reported in Kamarunnissa and Others Vs. Union of India and another, .

I have heard learned Counsel for the parties and perused the reord.

Undoubtedly, there is no dispute that State has power to detain a person by resorting to preventive detention, but this power of detention is not

absolute and all the procedural safeguards are required to be complied with.

In the present case, the contention raised by the learned Counsel for the petitioner is that detenue was not served with the grounds of detention,

as a result of which the detenue was unable to make an effective representation against his order of detention. This act on the part of the

respondent-State is held to be violative of Article 22(5) of the Constitution of India. In this regard, it would be apt to notice the observations made

by the Supreme Court in case reported in 2009 Criminal Law Journal 2451, titled Thahira Haris v. Government of Karnataka. What has been

observed in para 10 of the said judgment is being reproduced below:

More than half a century ago, the constitutional Bench of this Court has interpreted Article 22(5) of the Constitution in Dr. Ram Krishan

Bhardwaj Vs. The State of Delhi and Others, observed as under:

...Preventive detention is a serious invasion of person liberty and such meager safeguards as the Constitution has provided against the improper

exercise of the power must be jealously watched and enforced by the court. In this case, the petitioner has the right, under Article 22(5), as

interpreted by this Court by majority to be furnished with particulars of the grounds of his detention ""sufficient to enable him to make a

representation which on being considered may give relief to him"". We are of opinion that this constitutional requirement must be satisfied with

respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under Clause (6) of Article 22. That

no having been done in regard to the ground mentioned in sub-paragraph (e) of paragraph 2 of the statement of g rounds, the petitioner's detention

cannot be held to be in accordance with the procedure established by law within the meaning of Article 21. The petitioner is therefore entitled to be

released and we accordingly direct him to be set at liberty forthwith.

Other plea raised by the learned Counsel for the petitioner is that the petitioner was already in police custody at the time of passing of order of

detention. This fact has not been denied by the learned Counsel for the respondents. Reliance has been placed by the learned Counsel for the

petitioner on a judgment reported in Judgment Today 2008 (9) SC 243. Para 26 of the said judgment is quoted herein below:

Mr. Ahmadi, learned Counsel for the detenue submitted that the detenu was in jail at the time when the detention order was passed. His three

bail applications were rejected. Since there was no bail application pending, therefore, there was no imminent possibility of his being released by

the court. The detenu's coming out on bail was merely imse dixit of the detaining authority unsupported by any material before the detaining

authority on the basis of which the detaining authority could be satisfied that the detenue was likely to be released on bail. In absence of any such

material on record, the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. The learned Counsel for the

detenu also placed reliance on Ramesh Yadav Vs. District Magistrate, Etah and Others, In this case the court observed as under:

The order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry

on his criminal activities in the area. If the apprehension of 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 be raised. Merely on the ground that an accused in detention as an under-trial prisoner

was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel

for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicate by this

Court in a series of cases relating to preventive detention. The impugned order, therefore, has to be quashed.

Learned Counsel for the petitioner has produced documents showing that son of the detenu has faced a road accident on 02.10.2009, and is

admitted in Bone and joint hospital. It is stated that presence of the detenu in hospital has become necessary. He states that on humanitarian

ground also order of detention is required to be quashed.

In the case in hand, as indicated above, the specific averment made in the petition is that the detenu was already in custody at the time of

passing of detention order and had not applied for bail. The detaining authority should have recorded the compelling reasons for arriving at a

conclusion that the order of detention is necessary inspite of the fact that the detenu is already in custody. The said compelling reasons, as indicated

above, are not apparent from the order impugned or the grounds of detention.

For the reasons stated hereinabove, this petition is allowed and the order of detention No. 72-DMS/PSA/2009 dated 30.6.2009 is quashed.

Record of the case be returned back. Disposed of.