Gulzar Ahmad Lone vs State and Others

Nisar Ahmad Kakru, J.

1, Allegation of providing logistic support to the militants appears the cause for detention of the subject under the provisions of the Jammu and

Kashmir Public Safety Act 1978 (PSA). Contention of the Learned Counsel for the petitioner is that there is absolutely no involvement of the

detenu in any such activity, therefore, grounds of detention are silent about that. He has further gone to say that the detenul has been detained

under the PSA during his jail custody. To substantiate the contention it is submitted that the subject was booked vide FIR 26/08 u/s 7/25IAA

wherein he has not sought any bail which is true even as on date and this factual averment, although specifically pleaded, has not been

controverted. Thus it emerges that no motion for bail was ever moved by the subject. Apart from the fact that the allegations of crime narrated In

the grounds of detention being so grave that it makes an uphill task for the subject to succeed in getting the bail, even if motion is laid at any stage,

yet it is to be seen as to whether grounds of detention can sustain in absence of a motion having been laid for grant of bail. To have the answer,

Para 19 of the judgment of the apex Court in Dharmendra Suganchand Chelawat and another Vs. Union of India and others, may be extracted:

The decisions referred to above lead to the conclusion that an order for 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 is already in

detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression

compelling reasons in the context of making an order for detention of a person already 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 detenu 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.

Relying upon the judgment supra, the Division Bench of this Court in Mohammad Yousuf Sofi v. State and Anr. 2003 (1) SLJ 218 has held.

Paras 13 and 14 may be noticed:

Therefore in our view detention order u/s 8 of the Act cannot be issued against a person unless it is shown:

a) That the detaining authority was aware of the fact that detenue was already in detention and (b) that there are compelling reasons justifying such

detention because the person to be detained already being in custody cannot be expected to engage himself in the prejudicial activities and

compelling reasons would imply that there must be cogent material on the basis of which the detaining authority is satisfied (i) that detenue is likely

to be released in the near future and (ii) that taking into account the nature of the antecedent activities of the detenue it was likely that after his

release from custody he would indulge in the prejudicial activities and that it was necessary to detain him in order to prevent him from engaging in

such activities.

Once these tests are satisfied a detention order u/s 8 can be issued against a person who is in custody....

The legal position that emerges from judgments supra is that the detaining authority is not powerless to pass an order of detention

notwithstanding that such person is already in the custody but what is it required to do is to show from the grounds of detention that it was aware

of the fact that the detenue is already in custody and has to spell out the compelling reasons which justify the order of detention. Indicating the

compelling reasons, the apex Court has emphasized on the availability of cogent material to the effect that the detenue is likely to be release from

the custody in near future and after his release there is likelihood of his indulging in prejudicial activities and it is necessary to detain him so as to

prevent him from engaging in such activities but situations so countenanced in law are neither indicated in the grounds of detention nor by the

record of the detaining authority. Thus applying the ratio of the judgments aforementioned, the order of detention is not sustainable.

In the result, writ petition succeeds. It is allowed, of course, without expression of opinion with respect to the merits of grounds of detention.

Order of detention bearing No. DET/PSA/08/506 of 2008 dated 26.03.2008 isquashed with further direction to the respondents to release the

person of Gulzar Ahmad Lone S/o Ghulam Mohammad Lone R/o Chanderhama, Tehsil Pattan District Baramulla Kashmir forthwith unless

required in any other case.

Disposed of along with Cr. MPs, if any.