MOHAMMAD RUSTUM BHAT vs STATE, & ORS.

One Shri Mohammad Rustum Bhat (hereinafter called the detenue), was earlier on detained by the respondent No.2 in terms of the detention order bearing No. 57/DMB/PSA/2016 dated 02-08- 2016. The said order was challenged before this Court by the medium of HC(P) 176/2016 and while quashing the order of detention on 30- 12-2016, the learned writ Court directed the respondents therein to release the person of the detenue forthwith. However, instead of releasing the detenue, the respondents booked him in FIR No. 96/2016 of police station Tarzoo. The detenue filed a bail application before the Court of Principal Sessions Judge, Baramulla, who, vide his order dated 23-01-2017, directed the release of the detenue on interim bail till 03-02-2017. However, when the order dated 23-01-2017 was served on the respondents, they did not release the detenue and instead booked him in another FIR bearing No. 53/2016 of police station Tarzoo. Learned counsel for the petitioner states that the detenue filed another application for his release on bail in the said FIR before the Court of Additional Sessions Judge, Sopore, which was allowed vide order dated 14-02-2017 and the detenue was directed to be released from police custody. It is further pleaded that even after the grant of bail in the said FIR, the detenue was not released and was again falsely booked on 17-02-2017 in FIR No 88/2017 of police station Tarzoo.

It is stated in the writ petition that while the detenue was on police remand in FIR No. 88/2017, the respondent No. 3 - SSP, Sopore, got him detained under the provisions of the J&K Public Safety Act, 1978 (PSA) in terms of order No. 273/DMB/PSA/2017 dated 11-03-2017, issued by respondent No.2 - District Magistrate, Baramulla. This order was assailed before this Court in HC(P) No. 90/2017 and the Court, vide order dated 07-06-2017, quashed the order of detention and ordered for the release of the detenue forthwith from preventive custody. The respondents instead of releasing the detenue, booked him under FIR No. 64/2017 of police Station Tarzoo. The said FIR is under investigation. The respondent No.3 yet again got the detenue detained under the provisions of PSA vide order No. 57/DMB/PSA/2017 dated 04-07-2017, which is impugned herein. The detenue was lodged in District Jail Kathua and continues to be there at present.

The said order of detention is challenged on the grounds, inter alia, that when a person is detained under the provisions of PSA and the detention is quashed by the Court, he cannot be detained again under the PSA unless he is released and fresh facts come into existence which warrant his detention. Learned counsel for the petitioner submitted that in the instance case the detenue has not been released and no fresh grounds have come into existence, therefore, the order of detention on this ground alone is liable to be set aside.

The order of detention of the detenue was executed on 05th of July, 2017. The grounds of detention, along with the allied documents, are said to have been served on the detenue and the contents thereof, as contended, have also been read over and explained to him in the language which he understood fully.

The learned counsel for the detenue has argued that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences under various F.I.Rs, more particularly, F.I.R No. 64/2017, u/s 153-A RPC of P/S Tarzoo, which was under investigation at the time of passing of the impugned order of detention and in which the detenue had not applied for bail. It has also been argued that the respondents, in their reply affidavit, have stated that the detention warrant was executed on 05-07-2017 by one SI Mohammad Abdullah No.271/A (EXK- 791464) of DPL Sopore, who read over and explained the contents of the same to the detenue. Assuming the contention to be correct, the said SI ought to have filed an affidavit to substantiate so, which has not been done in the case on hand. The petition, on this ground also, deserves to be allowed and, as a consequence thereof, the order of detention is liable to be quashed.

Per contra, learned counsel for the respondents has argued that the order of detention has been passed after taking into consideration the relevant provisions of J & K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is conversant and these have been read over and explained to him at the place of his detention, i.e. District Jail Kathua. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents.

Heard and considered. The detention record has also been perused.

As already stated, the impugned order of detention has been challenged chiefly, on the ground that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences in case FIR No. 64/2017, registered at Police Station Tarzoo, which was under investigation.

Preventive detention, as has been held in the cases of A.K.Gopalan v. State of Madras (1950) SCR 88 and Rekha vs. State of Tamil Nadu (AIR 2011 SCW 2262), is, by nature, repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case

(supra) emphasized that article 22 (3) (b) of the Constitution of India is to be read as an exception to article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under article 21. The Supreme Court further observed that since article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It has, therefore, to be understood that if the ordinary law of the land (India Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. The Supreme Court added that it must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as "jurisdiction of suspicion." To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital. The Supreme Court, after putting reliance on the law laid down in Kamleshwar Ishwar Prasad Patel vs. Union of India and others (1995) 2 SCC 51 (para 49) observed that the history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigor cannot be allowed to be diluted on the basis of the nature of alleged activities of the detenue.

The Supreme Court quoted with approval the observation made in Ratan Singh Vs. State of Punjab and others 1981 (4) SCC, emphasizing the need to ensure that the constitutional and statutory safeguards available to a detenue are followed in letter and spirit. It observed, but the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenues.

The procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of Detaining Authority. As laid down by the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh v. B.K.Jha and anr. (1987) 2 SCC 22, the procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.

Looking at the instant petition from the above perspective, case FIR NOs. 53/2016 & 96/2016, were registered against the detenue at Police Station Sopore/Tarzoo, in which bail was granted to him. However, before the date of the passing of the impugned order of detention, the detenue is said to have made a provoking speech, as a corollary to which, FIR No. 64/2017 was registered against him for an offence u/s 153 RPC. This FIR is said to be under investigation and no bail application is alleged to have been filed by the detenue in it. The FIRs aforesaid form the baseline of the impugned order of the detention of the detenue. The relevant extracts of the grounds of the detention of the detenue, which are germane to the decision of this petition, need consideration and these are as under :

.................You remained involved in many law and order cases of unrest 2016, the details whereof are as under :

FIR NO. 53/2016 U/S 153 A, 336, 427, 341 RPC of p/s Sopore.

FIR NO. 96/2016 U/S 153 A of p/s Tarzoo.

FIR NO. 88/2016 U/S 147, 148, 307,336,332,427 RPC of p/s Tarzoo.

For your involvement in the above mentioned cases, you were booked under PSA vide DM Order NOs. 57/DMB/PSA/2016 dated 02-08-2016 and 273/DMB/PSA/2017 dated 11-03-2017. You were released from PSA detention on 19-06-2017 by the orders of Hon'ble High Court Srinagar. However, after your release, you did not mend you way and again started provoking the youths of town Sopore to protest and pelt stones during strike calls/Fridays.

On 26-06-2017 (Eid day), you delivered a provoked and anti India speech at Eidgah Noor Bagh, Sopore. To this effect, case FIR

No. 64/2017 u/s 153 A RPC stands registered in polish station Tarzoo which is under investigation.............

The question for consideration is, can an order of detention be passed on the face of what has been stated above. The answer to this question can be a big "No" taking into consideration the law laid down by the Apex Court of the Country in para 24 sub para (6) of the judgment delivered in the case of Sama Aruna Vs. State of Telangana and another, reported in AIR 2017 SC 2662, which reads as under:-

On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.

The same view has been repeated and reiterated by the Hon'ble Supreme Court in paragraph 13 of the judgment delivered in the case of V.Shanta Vs. State of Telangana and others, reported in AIR 2017 SC 2625, that reads as follows:

The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act.

Testing the case on hand on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provision of PSA, when he was involved in the commission of substantive offences, in some of which he had been released on bail, while as, in others, he had not applied for bail. The proper course would have been to challenge the order of bail granted to him in the two FIRs and to assail the orders in the other two FIRs, before a higher forum, if at all, he would have been released on bail. The detenue could not have been detained preventatively. This single infraction renders the order of detention liable to be set aside.

The learned counsel for the petitioner has argued that the officer, who handed over the detenue to the jail authorities of the District Jail Kathua, along with relevant documents, should have filed an affidavit in the matter, which has not been done. From a bare glimpse of the execution report, what gets revealed is that the detention warrant has been executed on 05-07-2017 at District Jail Kathua Jammu. It also states that the contents of detention warrant and grounds of detention were read over to the detenue in the English language and were also explained to him in urdu/kashmiri languages, which languages he understood fully well and in token thereof, his signature was also obtained on the execution report itself. To eradicate all doubts, it was incumbent on the part of the officer, namely, SI Mohammad Abdullah, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach, at least, a semblance of fairness to his statement. Resort can, in this behalf, be had to the law laid down by the apex Court of the country in the case of State Legal Aid Committee, J&K versus State of J&K & others, reported in AIR 2005 SC 1270, wherein it has been held as under :

Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/communicated to the person affected by the order has been complied

with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal.

Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act.

The execution report, when looked from yet another angle, states that the relevant documents in the shape of the copy of the detention order and a copy of the grounds of detention, comprising two leaves in toto, were handed over to the jail authorities for their onward delivery to the detenue. what can be culled out from this report is that the copies of the FIRs and the documents, framed and collected during the investigation of the FIRs aforesaid, were not provided to the detenue so as to enable him to make a representation, which cuts at the very root of the case and to CROWN it all, the order of detention of the detenue, impugned herein, is almost a replica of the earlier orders of his detention, which have been quashed by this Court. The State has failed to demonstrate that any fresh material was collected from the date of the quashing of the second order of the detention of the detenue till such time that the order impugned was passed. Such an action is not envisaged under law and it runs contrary to the judicial precedents evolved in the cases reported in AIR 1989 SCC 1234 and AIR 1970 SCC 1664.

Viewed in the context of all that has been said and done above, the petition is allowed, as a consequence of which, the order of detention bearing No. 57/DMB/PSA/2017 dated 04-07-2017 passed by the respondent No.2 - District Magistrate, Baramulla, is quashed with a further direction to the respondents to release the person of Mohammad Rustum Bhat S/O Haji Wali Mohammad Bhat R/O Amargarh, A/P, Umer Colony, Dye-pass Sopore, District Baramulla, Kashmir, forthwith from the preventive custody, unless required in any other case.

The petition is, accordingly, disposed of along with connected IAs. The record shall be returned to the learned counsel for the respondents.