Asif Ahmad Bhat vs State Of Jammu & Kashmir And Anr

Challenge, in this petition, is to the order No.11-DMK/PSA of 2018 dated 18.09.2018, issued by District Magistrate, Kupwara (for brevity "Detaining Authority"), in terms whereof, Asif Ahmad Bhat son of Abdul Gani Bhat resident of Shalgund Lalpora (Lolab) District Kupwara (for short "detenu") has been taken into preventive custody.

The petitioner's case, as set out in the petition, is that the detenue on 08.07.2018 was arrested by the police personnel in connection with case FIR No.80/2018 P/S Lalpora and while in custody, detention order impugned was slapped upon him. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded.

1) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The learned counsel for the respondents has made available detention records to lend support to the case set up in the counter affidavit.

2) Firstly, learned counsel for the petitioner contended that as per grounds of detention the detenue has been arrested on 10.07.2018 in connection with case FIR No.80/2018 P/S Lalpora for commission of offence punishable under Section 7/25 Arms Act and 13 ULA(P) Act and so was in custody of said Police Station when the order of detention has been passed. No application for grant of bail had been moved on behalf of the detenue before any court. There was no requirement of passing the order of detention. No compelling reasons have been mentioned for passing the order of detention.

3) The Hon'ble Apex Court in para 27 of the judgment Rekha Vs. State of Tamil Nadu and anr", (2011) 5 SCC 244 has held as under:-

"27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed".

It shall also be quite apposite to quote Para 5, 6 and 7 of the judgment of the Hon'ble Apex :

"5. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this court since it state first came up for consideration before a Constitution Bench in Rameshwar Shaw vs District Magistrate Burdwan to eschew prolixity we refrain from detailing all those cases accept that of Dharmendra Sugan Chand Chelawat v. Union of India wherein a three judge Bench after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words:

"The decisions referred to above lead to the conclusion that an order for detection 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 detailing authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression compelling reasons in the context of making an order for detention of a person already in in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that

(a) the detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority's awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in the grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail "he may again indulge in serious offences causing threat to public order". (emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified.

7.On the conclusions as above we quash the order of detention."

Next learned counsel for petitioner projected that the detaining authority has not prepared the grounds of detention itself which is pre-requisite for him before passing any detention order, thus non-preparation of grounds of detention by the detaining authority renders the impugned order bad in law.

In rebuttal, though the learned counsel for the respondents tried to justify the passing of order impugned but the detention record failed him in his effort. While going through the detention records, as produced, the ground projected appears to be forceful. The grounds of detention are replica of dossier with interplay of words here and there, which exhibits non-application of mind, in the process deriving of subjective satisfaction has become a causality. The Hon'ble Apex Court in the judgment rendered in the case of "Jai Singh and ors vs. State of J&K" (AIR 1985 SC 764) has held as under:

"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of ......."

Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into 'you' in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner."

Next it is contended that the order is illegal as the detaining authority has mentioned in the grounds of detention that the detenue be detained for maximum period when the District Magistrate who passed the order of detention was not empowered to fix the period of detention, same is domain of the Government.

Fixing of period of detention is wholly and solely domain of the Government and the District Magistrate has no power in this regard. Similar position has been dealt with by the Hon'ble Apex Court in the judgment captioned "Makhan Singh Tarasika Vs. State of Punjab", AIR (39) 1952 SC 27, wherein it has been held as under:-

"The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate General, however, urged that in view of the provisions in S.11(2) that if the Advisory Board reports that there is no sufficient cause for the detention, the person concerned would be released forthwith, the direction in the order dated 30.7.1951 that the petitioner should be detained till 31.3.1951 could be ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioner's case when it is placed before the Advisory Board. It cannot be too often emphasized that before a person is deprived of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected.

In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain on the above referred grounds alone, therefore, other grounds projected in the petition are not required to be dealt with.

The cumulative effect of the aforesaid discussion leads to the only conclusion i.e. the order of detention impugned bearing No.11-DMK/PSA of 2018 dated 18.09.2018, passed by respondent No.2-District Magistrate, Kupwara, is not valid, as such, quashed. Further custody of the detenu shall be regulated in accordance with the orders as shall be passed by the court of competent jurisdiction in connection with criminal case(s) registered against him.

The record, as produced, be returned to the learned counsel for the respondents.