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Judgment
Through the medium of instant petition quashment of detention order bearing No. 16/DMP/PSA/20 dated 13.07.2020, (hereinafter for short the
impugned order) passed against the detenue namely Mohammad Rafiq Mir is being sought by the petitioner as also a writ of mandamus for his release
and a compensation of Rs. 10 Lacs for his illegal detention.
It is being stated in the petition that the detenue is a law abiding and peace loving citizen and has never involved in any subversive activity prejudicial
to the public order or security of the State. The detenue is stated to have been arrested in the month of January 2020, after being summoned to Police
Station Khrew, from his place of duty and was implicated falsely in case FIR No. 03/2020 registered at Police Station Khrew and while being in
custody therein the said FIR came to be detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail,
Srinagar.
The impugned order is being challenged on the grounds inter-alia that detenue was already in custody in case FIR No. 03/2020 and the detaining
authority despite having the knowledge of the said fact detained the detenue without spelling out any compelling reason thereof in the grounds of
detention, more so, when there was no possibility of the release of the detenue from the custody on account of offences of the FIR particularly
offences covered under chapter IV and VI of the ULP(A) Act.
It is being further urged in the grounds that the detenue had not been provided copies of the relevant material like copy of dossier, copy of FIR,
Statements under Section 161, 164-A Cr. PC, referred to in the grounds thus depriving him to file an effective representation against his detention.
The said failure is stated to have infringed the constitutional right of the detenue guaranteed under Article 22 (5) of the Constitution of India.
It is being next urged in the grounds of challenge that although a representation was submitted against the detention by the detenue through his
father before the respondents yet same was not considered rendering the detention order, as such, not sustainable in law.
Per contra, respondents in their reply affidavit filed in opposition to the petition resist and controvert the contentions raised and grounds urged by the
petitioner and have stated in their reply affidavit that the order of detention is preventive and not punitive in nature, while it is being admitted by
respondents that detenue was detained pursuant to impugned order.
It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenue.
It is being next stated that impugned order was executed by one Mohammad Maqbool ASI No. 15/AWT Police Station Khrew and that the detenue
was handed over to the Superintendent Central Jail, Srinagar, for lodgement and that the contents of detention order/warrant and grounds of detention
were read over and explained to the detenue in the language which he fully understood and in lieu thereof the detenue subscribed his signatures on the
execution report/order.
It is being further stated that the detenue was well informed about the right of making his representation and that despite having received the entire
material the detenue did not chose to make any representation against his detention.
It is being next stated that the advisory board after considering the material placed before it, in terms of Section 16 of the Act held that there is
sufficient cause for detention of the detenue, whereupon receipt of the said opinion of the advisory board the Government confirmed order of
detention against the detenue. Respondents in the process are stated to have complied with all statutory, constitutional provisions and followed all
requisite formalities without violating any of them.
Heard learned counsel for the parties and considered the matter.
While dealing with the first contention/ground of challenge urged by the petitioner qua non-recording of compelling reasons for detaining the
detenue when he was already in custody, it would be appropriate to refer to the judgement of the Apex court in this regard passed in case titled as
“Surya Prakash Sharma Vs. State of U.P and Others, reported in 1994 (3) SCC 195, wherein at Para 5 following has been noticed and laid down: -
“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 first came up for consideration before a Constitution Bench in
Rameshwar Shaw V. District Magistrate, Burdwan (1964) 4 SCR 92: AIR 1964 SC 334: (1964) 1 Crl LJ 257. To eschew prolixity we refrain
from detailing all those cases except that of Dharmendra Suganchand Chelawat V. Union of India (1990) 1 SCC 746: 1990 SCC (Crl) 249:
AIR 1990 SC 1196, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered
the question in the following words(SCC 754 para 21:
“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
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 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.â€
Perusal of the grounds of detention/order of detention would manifestly reveal that the detaining authority has not drawn any satisfaction as per
the mandate laid down by the Apex Court in the judgment “Surya Parkash Sharma†supra, while passing the impugned detention order against the
detenue, so much so, the respondents have also failed to express any such compelling reasons even in their reply affidavit as well. The impugned
order, thus in law, does not sustain on this count alone.
The second ground of challenge urged in the petition is that the petitioner submitted a representation against his detention which had not been
considered by the respondents.
Perusal of the record of the petition reveals that a representation has been made on behalf of the detenue by his father seemingly acknowledged to
have been received by the office of District Magistrate, Pulwama, on 18.07.2020. The said contention has not been denied by the respondents in their
reply affidavit thus resulting into drawing an adverse inference against the respondents in this regard. The failure of the respondents to consider the
representation submitted by the detenue indisputably amounts to violation of the provisions of Article 22(5) of the Constitution. A reference in this
behalf to the judgement of the Apex Court passed in case titled as Rahmatullah Vs. State of Bihar and Ors., reported in 1979 (4) SCC 559, would be
relevant and germane here wherein at Para 4, it is noticed and observed as under: -
“4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in
accordance with the normal appropriate criminal law; but if he is sought o be detained under any of the preventive detention laws as may
often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article
(5) of Article 22 reads:
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the
order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.
This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall
afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for
nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any
unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an
unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the
Constitution.â€
In view of the aforesaid position obtaining in the matter the other grounds urged in the petition need not to be dealt with and essentially pale into
insignificance.
The judgement referred to and relied upon by the counsel for the respondents titled as “Shiv Ratan Makim Vs. Union of India and Others,
reported in 1986 SC 610â€, is not applicable to the facts and circumstances of the case being misplaced and misdirected and does not lend any support
thereof to the case of the respondents.
Viewed thus, in the context what has been observed, analyzed and considered in the preceding pars, instant petition is allowed and consequent to
which the impugned order of detention bearing No. 16/DMP/PSA/20 dated 13.07.2020, is quashed, with the direction the respondents to release the
detenue forthwith from preventive custody, unless the detenue is required in any other case.
Disposed of along with all connected CrLM(s).
No orders as to costs.