Mohammad Shaban Malla vs State of J&K & Ors.

Mohammad Shaban Malla, aged 70 years, S/o Ab. Gaffar Malla R/o Dalri Tehsil Ruhama District Baramulla, Kashmir has filed the instant

petition seeking quashment of the detention order No.605 dated 19012009 passed by District Baramulla (respondent2) against his son Hassan

Malla, aged 30 years, (hereinafter to be referred to as detenu), under section 8(1)(a) and 8(1)(ai) of the Jammu & Kashmir Public Safety Act (for

short to be referred to as the Act) on several grounds, but Mr. Khan learned counsel for the petitioner in his wisdom has assailed the impugned

order primarily on the following grounds:

(a) A timber smuggler detained under section 8 of the Act with a view to prevent him from ""acting in any manner prejudicial to the maintenance of

the public order"" those activities attributed to the detenu would not come within the definition of expression ""acting in any manner prejudicial to the

maintenance of the public order"";

(b) Specifying the proposed period of detention at its initial stage at, the time of passing of the order is bad, as it would prejudice the case of the

detenu when it goes up for consideration before the Advisory Board; and

(c) Copies of the FIRs or the information contained therein not supplied to the detenu and as such depriving him to make effective representation

to the Government against his detention under section 13 of the Act.

In order to strengthen his arguments on the first flaw (a) Mr. Khan submits that section 8(2)(b) deals with the activities relating to the

maintenance of the public order and it is only of four types. Smuggling in relation to timber or liquor is not covered by 'act prejudicial to the

maintenance of public order' and it falls under section 8(2)(c) of the Act. To strike his view point home, he has drawn my attention to the detention

order which reads thus:

Whereas I, Baseer Ahmad Khan District Magistrate Baramulla am satisfied that with a view of preventing Hassan Malla S/o Shaban Malla R/o

Dalari Rafiabad Tehsil Rohama district Baramulla from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do;

xxxxxxxxx xxxxxxxxx

Mr. Khan submits that this aforesaid flaw reflects nonapplication of mind by the detaining authority. In support of his arguments, he has relied

upon a Division Bench judgment of this Court rendered in Mohammad Yousuf Mir Versus State of J&K & Ore., 2008 (1) SLJ 406 (Para 10).

To highlight second flaw (b), Mr. Khan submits that if one reads the detention order, District Magistrate at its initial stage has detained the

detenu in District Jail, Udhampur, for a period of 12 (twelve) months, which is the maximum period of detention provided under section 18 of the

Act for allegedly indulging into smuggling of timber. Determination of period of detention for which a detenu is to be finally detained is the domain

of the Advisory Board and the District Magistrate should not have overstepped his jurisdiction. The order of detention indicating the maximum

period of detention is bad and illegal, as it would have the tendency to prejudice the case of the detenu before the Advisory Board. To put

weightage to his submissions, Mr. Khan has relied upon a judgment of Hon'ble High Court of Bombay rendered in Rajendra MansukhLal Shah

Versus Commissioner of Police, Greater Bombay and others, 1989 Cri. L. J., 1741.

With regard to the third flaw (c), Mr. Khan submits that the grounds of detention read that the detenu was involved in four cases of causing

damage to the 'green wealth' of the State, but copies of the FIRs or the information contained therein was not supplied to him, whereby depriving

him of the statutory right to make effective representation, as provided under section 13 of the Act. He submits that the aforesaid omission renders

the order unsustainable. In support of his submissions, he relies upon unreported judgment of this Court, rendered on 18052009 in case Yousuf

Paswal Versus State of J&K & Ors., HC (W) No.06/2009 (produced and taken on record).

Primarily on the aforesaid flaws, Mr. Khan prays for quashing of the detention order.

Mr. Khan lastly submits that the petitioner being aged 70 years, i.e., at the last phase of his life and is keeping poor health and his alone son is in

the jail since January, 2009 whose entire family is dependent upon him. Therefore, his case may be considered sympathetically also.

Mr. Hussain, learned Deputy Advocate General, while refuting the submissions advanced by Mr. Khan submits that the detenu is a professional

smuggler, who is involved in four substantive cases of causing loss to the State and, therefore, he was rightly detained by District Magistrate. He

then submits that all procedural safeguards have been strictly followed in the present case and the infirmities pointed out by Mr. Khan in the

detention order do not make it weak for the reason that those are just ignorable and the basis of the subjective satisfaction of the detaining

authority was, in fact, the track record of the detenu. According to him, it was a preventive measure adopted by the detaining authority so as to

save the 'green wealth' of the State from further loss. He contends that the subjective satisfaction normally should not be made subject matter of the

judicial review. The petition on hand thus merits dismissal.

The arguments advanced by Mr. Hussain apparently appear to be quite attractive but when appreciated on the touch stone of the provisions of

the Act, they fall on the ground. No doubt, it is well settled that while exercising power of judicial review, this Court should not ordinarily sit in

appeal over the detention order to reappreciate the material, which is made the basis of the subjective satisfaction of the detaining authority, but, at

the same time, it is always open to the Court to reassess the case to see as to whether there is proper application of mind by the detaining authority

or not. The subjective satisfaction does not mean that he has not to apply his mind at all and believe the dossier as it is. After all, it involves the

fundamental right of a citizen which is not to be infringed in a very casual manner. The detaining authority must know as to what action it is taking

and under which provision of the Act. The impugned order, as stated above, in the preceding paras reflects that it has been passed against the

detenu with a view to prevent him from 'acting in any manner prejudicial to the maintenance of public order'. In the grounds of detention, the

involvement of the detenu is shown in four cases of timber smuggling. Expression 'Acting in any manner prejudicial to the maintenance of public

order' has been defined under section 8(2)(b) of the Act, which reads thus:

(b) ""acting in any manner prejudicial to the maintenance of public order"" means

(3) promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race caste, community, or

region;

(4) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise abetting the use of force where

such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;

(5) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of

section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;

(6) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death

or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to

disturb public order;

If one goes by the grounds of detention, the case of the detenu would fall under section 8(c). This shows that the detaining authority has just

filled up the printed form which is readily available with it for the purposes of passing such type of orders. May be it is too hypertechnical flaw

reflected in the detention order, but it cannot be ignored by this Court in the light of the judgment passed by Division Bench of this Court in

Mohammad Yousus Mir's case (supra), which is squarely applicable to the facts of the present case. Resultantly, the first flaw as pointed out by

Mr. Khan renders the detention order unsustainable.

The other flaws pointed out by Mr. Khan are equally weighty and are staring at the detention order. I comment upon them collectively. Second

para of the detention order (AnnexureA) reads thus:

I, Baseer Ahmad Khan District magistrate Baramulla direct that the said Shri Hassan Malla S/o Shaban Malla R/o Dalari refiabad Tehsil Rohama

district Baramulla, be detained in district jail Udhampur for a period of 12 months.

Under section 18(1)(a), the maximum period of detention, i.e., twelve months, for which any person can be detained in a case of involvement

in smuggling of timber, and this is the period shown in the basic detention order. This has ultimately to go to the Advisory Board for taking action

under section 17. The Advisory Board in its opinion cannot only revoke the detention order and cause the person to be the released forthwith,

even the fixing of period of detention also falls within its domain. In the case on hand, the District Magistrate assumed these powers to himself and

directed that the detenu be detained in District Jail, Udhampur for a period of 12 months. Undoubtedly, when the detention order along with the

entire material, which includes the representation of the detenu also, when goes before the Advisory Board, it would prejudice the case of the

detenu. In the judgment cited by Mr. Khan rendered in Rajendra MansukhLal Shah's case (supra), Hon'ble High Court of Bombay, while dealing

with the case with regard to detention order passed under section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of

Essential Commodities Act, held in para 14 as under:

What emerges from the above discussion is that the order of detention has not to specify the proposed period of detention at the initial stage viz.

at the stage of passing the order under S. 3. It is also affirmatively laid down by the various decisions of the Supreme Court that it is not necessary

for the detaining authority to mention the period of detention when passing the original order, but that the order would be bad and illegal, if any

period is specified, as it would have a tendency to prejudice the case of the detenu when it goes up for consideration before the Advisory Board.

The ratio of the aforesaid judgment is squarely applicable to the facts of the present case as in this case, the detaining authority instead of

confining its powers within the ambit of section 13 of the Act, overstepped its jurisdiction and straightaway assumed the jurisdiction of Advisory

Board. This action not only speaks volumes of the nonapplication of mind by the detaining authority but technically also makes the detention order

very weak to stand.

Nonsupply of the copies of the FIRs or the information contained therein to the detenu, is, however, admitted by Mr. Hussain, who has made

this statement after seeing the record. Therefore, the judgment rendered in Yousuf Paswal's case (supra), cited by Mr. Khan, squarely covers the

case on hand and renders the detention order unsustainable. The facts of the said case are also attracted in the present case but for the fact that in

the said case there were three FIRs showing the involvement of the detenu for causing loss to 'forest wealth', whereas in the present case there

were four FIRs registered.

15.I, after examining the entire record, find yet another flaw in the present case and that is snapping of the live link between the order of detention

and the cases registered against the detenu. The impugned order of detention is of 20th of March, 2007, i.e., 22 months after registration of the last

case in March, 2007. What happened in these 22 months, there is not a whisper in the grounds of detention. In the main petition, it has been

specifically averred that the mentioning of the FIRs in the grounds of detention appears to be a ploy and actuated by mala fide by the Forest

authority against the detenu. On this aspect, the respondents are silent in their counter affidavit. On a specific query put to Mr. Hussain as to

whether the detenu has been arrested in any of the four cases registered against him starting from August, 2004 and ending in March, 2007, he

states that the detention record is silent about it. Mr. Khan makes a statement at the Bar that the detenu has not been arrested in any of the cases,

and he is not even aware of the registration of these cases and was arrested only for the first time pursuant to the present detention order dated

19012009. In my view, had the police not been able to arrest the detenu in all these cases right from 2004, the prosecution agency should have

moved some application before the Court concerned for declaring him as proclaimed offender. In that eventuality, even his property could be

confiscated. Mr. Hussain candidly admits that the detention record is absolutely silent about it. Therefore, this weakness, in my view, snaps the live

link between the track record of the detenu and the present order of detention. The detaining authority should have asked for the entire material

from the police before passing the order. This again reflects nonapplication of mind by the detaining authority. On this aspect, it is advantageous to

refer to the judgment rendered by Hon'ble Apex Court in case K.P.M. Basheer Versus State of Karnataka and another, AIR 1992 SC 1353, the

relevant portion of which is reproduced below:

Under these circumstances, we are of the view that the order of detention cannot be sustained since the 'live and proximate link' between the

grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and

detaining him. We have now come to the conclusion that the order of detention is liable to be set aside on this ground alone, we are not dealing

with other contentions raised in the Memorandum of Appeal as well as in the writ petition.

Visualizing the case from all the angles, the net result now surfaces is that the impugned order of detention deserves to be quashed being

unsustainable. Ordered accordingly.

Petition on hand thus succeeds and allowed. Person of Hassan Malla S/o Mohammad Shaban Malla, R/o Dalri Tehsil Ruhama District

Baramulla, Kashmir, shall be released forthwith, if not required in any other case. Registrar Judicial to convey the order to the concerned quarters.

Detention record be returned to Mr. Hussain forthwith.