Masrat Alam Bhat vs State of J&K & Ors.

Farooq Ahmad Bhat, uncle of Masrat Alam Bhat S/O Abdul Majid Bhat R/O Zaindar Mohalla, Srinagar, detenue, has questioned the order

No. DMS/PSA/20/2008 dated 992008 passed by respondent No. 2, detaining the detenue under the provisions of the Jammu and Kashmir

Public Safety Act (for short the Act) on the grounds taken in the petition.

Respondents have filed counter and resisted the petition on the grounds taken therein.

AnnexureAimpugned order discloses that it came to be passed by the District Magistrate, Srinagar, on the basis of record submitted to him by

Senior Superintendent of Police, Srinagar. It nowhere discloses that it came to be passed by the detaining authority on the basis of grounds of

detention after due application of mind.

The activities attributed to the detenue, as given in the grounds of detention, relate to the years 1990,1998,1999, 2000, 2001, 2003, 2007 and

2008. It appears that previously also, the detenue came to be detained in terms of various detention orders which came to be quashed, pursuant to

which, he stood released from time to time. The grounds of detention also disclose that the detenue came to be arrested again on 242007 in FIR

No. 72/2007 and subsequently detained in terms of detention order which came to be quashed and released on 2752008. On 2562008, as

alleged, he came to be arrested in FIR No. 42/2008 under sections 141,149,336,436,447A, 427 Ranbir Penal Code (for short RPC) Police

Station Rainawari, Srinagar. The grounds of detention further discloses that one more FIR No. 35/2008 under sections 148,149,38,341, 336,

332, 427 RPC came to be registered against the detenue in Police Station Kralakhud and while in police custody in connection with the said cases,

he came to be detained in terms of the impugned detention order.

Admittedly, detenue has not applied for bail. It is stated in the grounds of detention that he may get bail from the court. The question is whether

it can be said to be a compelling reason for detaining the detenue, despite the fact that the detenue was in custody? The answer is in negative for

the following reasons:

It is the duty of the detaining authority to spell out the compelling reasons for detaining the detenue in preventive detention, when he is in custody

in substantive offence(s). When no such compelling ground(s) are spelled out, then the order of detention suffers from nonapplication of mind and

is to be quashed. My this view is fortified by the judgments of the apex court reported in AIR 1995 SCW 1841 and (2001) 1 SCC 341.

It is worthwhile to mention here that as per grounds of detention, as discussed above, the detenue is allegedly involved besides other offences, in

the commission of offence under section 436 RPC. The said offence is a special offence and is to be tried by a Special Judge and no bail can be

granted unless the prosecution is heard. In terms of proviso to Section 173 Criminal Procedure Code (for short Code), the investigation is to be

completed within two weeks. In terms of section 259A of the Code, the trial is to be conducted by a Special Judge (Sessions Judge) to be

appointed by the Government in consultation with the High Court for the purpose and the trial is to be commenced within one week from the date

of presenting police report under section 173 of the Code. In terms of Section 497B of the Code, no bail can be granted unless prosecution is

given an opportunity to oppose the bail application and the court has to record satisfaction that there are reasonable grounds for believing that he is

not guilty of such offence.

The aforesaid provision of law puts limitations on the jurisdiction of the court in the matter of grant of bail. It contains letters, which cannot be

ignored by any court of law.

It appears that said provision of law has not been taken into consideration by the detaining authority while passing the impugned detention order

and it can be safely said that it suffers from nonapplication of mind. My this view is fortified by the apex court judgment titled Sayed Abdul Ala Vs.

Union of India & ors, 2007 AIR SCW 6974. It is apt to reproduce paras 19 and 20 of the said judgment hereunder:

The statute, thus, puts limitation on the jurisdiction of the court in the matter of grant of bail. They cannot be ignored by any Court of Law.

Several decisions of this Court and of High Court operate in the field.

Proper application of mind on the part of the detaining authority must, therefore, be borne out from the order of detention. In cases where the

detenue is in custody, the detaining authority not only should be aware of the said fact but there should be some material on record to justify that he

may be released on bail having regard to the restriction imposed on the power of the Court as it may not arrive at the conclusion that there existed

reasonable grounds for believing that he was not guilty of such offence and that the detenue could not indulge in similar activity, if set at liberty.'

While going through the grounds of detention, it appears that the detention order was already issued before framing the grounds of detection. It

is apt to reproduce last 03 lines of the grounds of detention hereunder:

.............Under such compelling circumstances, it has become imperative to detain you under Jammu and Kashmir Public Safety Act, 1978 for

which a separate order has been issued.

In terms of mandate of Public Safety Act, it is mandatory to examine the material, consider the same and to prepare the grounds of detention in

order to record satisfaction for detaining the detenue and thereafter detention order is to be issued. In the instant case, perusal of the grounds of

detention reveal that the order of detention was already issued and thereafter grounds of detention came to be framed.

The words 'separate order' has been issued means and connotes that 'order of detention was already issued. It is recorded in past tense.

Word 'issued' used means that something has been done already. The words is to be issued is not used in the grounds of detention. Had the

detaining authority used the words is to be issued, it could have been safely held and said that after recording grounds of detention, the impugned

order was to be issued, but what it connotes is that the order has already been issued. Thus it can be safely said that the detention order came to

be passed without application of mind. This court in a case titled Abdul Rahim Rather Vs. State of J&K, 1996 SLJ 202 has held that if detention

order is made and recorded before grounds of detention are framed, it can safely be said that the order has been passed mechanically and without

application of mind.

The apex court in a case titled Naresh Chandra Gnguli Vs. The State of West Bengal, AIR 1959 SC 1335 has held that grounds of detention

must be in existence at the time when order of detention is made.

In the given circumstances of the case, it can be safely held that the detention order came to be made when the grounds of detention were not

in existence.

It is specifically pleaded in the petition that the respondents have not furnished relevant documents which are made basis for passing the

detention order. Learned counsel for the respondents stated that the facts/allegations relating to the year 1990 till making of grounds of detention

were just made for passing reference and are not basis for making fresh detention order and frankly conceded that copies of the said documents

relating to the said facts have not been furnished the detenue. While going through the record, one comes to an inescapable conclusion that all the

facts and grounds came to be made basis for making the detention order.

While going through the record, it appears that serving officer Mohammad Yasin had made a report, Photostat copy of which is on the record,

that the grounds of detention consisting of 03 leaves have been read over and. explained to the detenue. It is nowhere stated that the copies of

grounds of detention, detention order and other material came to be issued or served to the detenue.

Nothing is forthcoming from record as to whether copies of FIRs and other documents viz. seizure memo, statement recorded under section

161 Cr.P.C. came to be issued or served to the detenue. It is the duty of the detaining authority and of the respondents to furnish all documents

relied upon and lo inform the detenue that he has a right of making a representation. As discussed hereinabove, the detenue has not been furnish all

the material, so as to enable him to make an effective representation against his detention. When a person is in preventive detention or in police

custody, he has no access to his own documents which are in his possession, though at his home or at his office. How can it be said that he could

have made an effective representation in the given circumstances of the case. Right of personal liberty and freedom came to be curtailed in terms of

the impugned order, without following mandate of law. When such is the situation, it can safely be said that impugned detention order is bad arid

merits to be quashed. Recently apex court in a case titled Union of India Vs. Ranu Bhandari, 2008 Cri. LJ. 4567 has held that nonsupply of all the

material both for and against the detenue is against the mandate of law and violates all the safeguards provided by the constitution read with

provisions of the Act.

As per record, the detention order came to be executed on 1192008, but in the report of the serving officer, it is disclosed that it came to be

executed on 1092008 at 2 p.m., which one is correct. This is also suggestive of the fact that all the safeguards enshrined in the Constitution and the

Act came to be observed in breach.

The allegations contained in the grounds of detention are vague inasmuch as the particulars of the meetings conducted with so many persons

and also other particulars are lacking. Only on this ground, the detention order merits to he quashed. I am fortified in any view by a judgment of the

apex court reported as Dhananjoy Das Vs. District Magistrate, AIR 1982 SC 1315.

Having glance over above discussions, I am of the considered view that all the safeguards provided by the constitution of India read with

provisions of the Act have been observed in breach. Viewing thus, this petition is allowed and the impugned order of detention bearing No.

DMS/PS A/20/2008 dated 09092008 issued by respondent No. 2 is quashed and the respondents are directed to release the detenue from

preventive custody, if not required in any other case.