Mohammad Ayoob Gujri vs State of Jammu & Kashmir and Others

R.C. Gandhi, J.—Detenu, Mohammad Ayoob Gujri S/o Noor Din Gojri sic (Gujri) R/o Jamia Mohalla Pattan through his maternal uncle

Ghulam Hassan Gujri seeks to quash the detention order No. 109 of 2003 dated: 10.09.2003 passed by respondent No. 2 in exercise of his

power u/s 8 of the J&K Public Safety Act (hereinafter to be referred to as ""the Act,"") directing preventive detention of the detenu for a period of

24 months.

The detention order has been challenged on various grounds including that the detenu was already in the custody of the respondents in FIR No.

171 of 2002 for commission of alleged offences under Sections 302, 307, 34 RPC and 7/25 Arms Act registered with Police Station Pattan and

without disclosing compelling reasons the detention order has been passed which is not sustainable.

The respondents have filed the counter affidavit wherein they have controverted averments set up in the petition. It is also stated by the

respondents that the respondents have shown awareness with regard to the custody of the detenu with the respondents in their reply affidavit.

Heard learned Counsel for the parties and perused the record.

Learned Counsel for the petitioner has submitted that the detenu was apprehended on 26.6.2003 and booked in FIR No. 171 of 2002. The

detention order has been passed on the ground that remaining at large of the detenu shall be highly prejudicial to the security of the State in the

event of his release of bail as contained in the grounds of detention. His submission is that the detaining authority has shown the compelling reasons

that in case of his release on bail; the detenu can reactivate himself to the activities prejudicial to the security of the State. The satisfaction of the

detaining authority that in the event of his remaining at large shall be highly prejudicial to the security of the State is not borne out by the record. The

detaining authority should have recorded his satisfaction on the basis of the record, such as, an application moved for grant of bail or other relevant

material. In the Counter Affidavit or the record maintained by the respondents, produced before the court for perusal, it not made out that such a

satisfaction has been made on the basis of some record. It is not denied by the respondents that the detenu has not applied for bail and was in the

custody of the respondents. While the detenu is in the custody of the respondents, the detaining authority must be aware that the detenu is in their

custody and that there is likelihood of his being released on bail. The detenu has not applied for bail, therefore, the satisfaction that in the event of

his release on bail is not based on any cogent material. Learned Counsel for the respondents, for maintaining the detention order, has relied upon

the judgment reported in Union of India (UOI) Vs. Paul Manickam and Another, . Para 14 whereof is relevant.

Relevant part of the Para is extracted below and reads:

Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the, maintenance

of public order or economic stability etc, ordinarily, it is not needed when the detenu is already in custody.

The aforesaid judgment is of no help to the respondents. In this judgment also, the Court has specifically recorded that ordinarily preventive

detention is not needed that while the detenu is in the custody of the respondents. The detaining authority must show its awareness to the fact of

custody of the detenu. However, the detaining authority can direct the preventive detention where he is reasonably satisfied that there exists cogent

material and there is likelihood of his release. In the prevent case there is no likelihood of release of the detenu as he has not applied for bail.

Learned Counsel for the petitioner has relied upon (2001) 1 SCC 341 wherein dealing with the situation where the likelihood of being released

was not available, the Supreme Court has observed as under:

As held in Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, , if a person is in custody and there is no imminent possibility of his

being released therefrom, the power of detention should not ordinarily be exercised. There must be cogent material before the officer passing the

detention order that the detenu is likely of be released on bail. The inference must be drawn from the available material on record and must not be

the ipse dixit of the officer passing the order of detention. In the present case the requirement that there is likelihood of the detenus being released

on bail was, however, not available in the reasoning as provided by the officer concerned. The reasoning available is the ""likelihood of his moving

an application for bail"" which is different from likelihood to be released on bail. This reasoning is not sufficient compliance with the requirements as

laid down. The available cogent material in this case was the likelihood of having a bail application moved in the matter but not obtaining a bail

order. Therefore, the detention order is liable to be quashed.

The detaining authority has not drawn the subjective satisfaction as required by law considering the existing material and has erroneously drawn

subjective satisfaction that remaining at large of the detenu shall be prejudicial to the security of the State.

For the aforesaid reasons, this petition is allowed and the detention order No. 109 of 2003 dated: 10-09-2003 is set aside with direction to the

respondents to release the said detenu from preventive detention forthwith, if not required in any other offence.