Mohammad Yousuf Mir vs State of Jammu & Kashmir and Others

J.P. Singh, J.—Appellant's Habeas Corpus Petition No. 86/2007, questioning District Magistrate, Baramulla's Order No. 313 of 2006

dated 20th of July, 2006, directing his detention for a period of twelve months has been dismissed by a Learned Single Judge of this Court vide his

Order of October 1,2007.

Dissatisfied with the judgment, the appellant has come up in appeal to us.

Appellant's Learned Counsel Mr. Shaheen says that the detention order impugned in H.C.P No. 86/2007 was bad in law because it had been

executed after a period of more than eight months and no reasons had been assigned by the Learned District Magistrate justifying the delay in its

execution. Appellant had specifically stated in his writ petition that he had been attending trial in FIR Nos. 28/2005 & 68/2005 before Learned

Judicial Magistrate, Sopore and despite his being available, the respondents had opted not to execute the detention order' which clearly

demonstrated that there was no necessity for issuance of the detention order. His next contention is that non-application of District Magistrate's

mind in issuing the detention order was apparent from a bare perusal of Order No. 313 of 2006 which had recorded that the activities of the

appellant were prejudicial to the maintenance of public order, whereas the grounds of detention served later did not show any such activities

indicating those to he prejudicial to the maintenance of the public order, and had instead referred to the alleged involvement of the appellant in

activities relating to smuggling of timber. It is further stated by appellant's counsel that the petitioner had been on bail in the F.I.Rs, mentioned in the

grounds of detention, but this fact does not appear to have been conveyed to the Learned District Magistrate and unaware about the petitioner's

release on bail, Learned District Magistrate had proceeded to pass his detention order which was as such unsustainable. Learned Counsel says

that the Learned Single Judge had not dealt with any of the grounds specifically raised in appellant's petition and the impugned judgment was,

therefore, liable to be set aside and quashed.

Justifying the preventive detention of the appellant, Learned State Counsel supports the impugned judgment on the basis of the activities which

had been attributed to the appellant in the grounds of detention.

We have considered the submissions made at the Bar. Before dealing with the issues raised at the Bar, regard needs to be had to what had been

stated by the appellant in his writ petition regarding plea of non-execution of the detention order for over a period of eight months.

Annexing copies of the interim orders passed by the trial Court in cases arising out of F.I.R Nos. 162/1998-99,68/2005 and 28/2005, the

appellant had stated in ground 6 (b) of his writ petition that he had all along been appearing in the Court of Learned Judicial Magistrate, 1st Class,

Sopore, but the respondents had opted not to execute the detention order. He had stated that delayed execution of the detention order was

inordinate and without any reasonable explanation because of which the impugned order was liable to be quashed.

This specific plea of the appellant in his writ petition has not at all been adverted to by the Learned District Magistrate who had filed his affidavit

in response to the writ petition. It has, however, been admitted in the affidavit that the detention order dated 20th of July, 2006 of the petitioner

had been executed on 28th of March, 2007.

Perusal of the counter affidavit of the detaining authority does not reveal any explanation of any type whatsoever muchless a justifiable

explanation which had prevented the detaining authority from executing the detention order immediately after issuance thereof and for the delay

caused in execution thereof for eight long months.

Silence of the District Magistrate in meeting the specific plea of the appellant in keeping the detention order unexecuted for more than eight

months clearly demonstrates that there was no immediate need for the detention of the appellant. This is so because had the authorities felt genuine

need to curb the liberty of the appellant for preventing him from indulging in activities relating to smuggling of timber, there would not have been at

remissness or total inaction by the respondents in omitting to take steps to execute the detention order to achieve the purpose of prevention of

smuggling' of timber. All this, therefore, demonstrates that the detention of the petitioner had been ordered in a routine manner. Non-application of

District Magistrate's mind in issuing appellant's detention order becomes further apparent when he records in his Order No. 313 of 2006 dated

20th of July, 2006 that the detention order had been issued against the appellant with a view to prevent him from acting in any manner prejudicial

to the maintenance of public order. Activities attributed to the petitioner in the grounds of detention which refer to his involvement in activities

pertaining to smuggling of timber do not fall within the definition of the expression ""acting in any manner prejudicial to the maintenance of public

order"" which expression has been defined by the legislature u/s 8 (2) (b) of the Jammu and Kashmir Public Safety Act, 1978 to mean as:

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

region;

(ii) 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;

(iii) attempting to commit, or committing, or instigating, inciting, provoking' or otherwise abetting the commission or, 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;

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

or imprisonment for like 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.

We are, therefore, of the view that exercise of power by Learned District Magistrate, Baramulla, u/s 8 of the Jammu and Kashmir Public Safety

Act, 1978, in directing the preventive detention of the petitioner is a result of non-application of mind and hence unjustified. We are supported in

taking this view by a judgment of Hon'ble Supreme Court of India in K.P.M. Basheer Vs. State of Karnataka and another, .

We further find that the District Magistrate does not appear to have been informed about the release of appellant on bail before the issuance of

the detention order and in that view of the matter too, the fact of appellant's being on bail having not been brought to the notice of the District

Magistrate renders appellant's detention unsustainable in view of the law laid-down by Hon'ble Supreme Court of India in Anant Sakharam Raut

Vs. State of Maharashtra and Another, .

We do not find any merit in the submissions of Learned State Counsel that the appellant's detention is justified on the basis of activities alleged

against him in the grounds of detention because in order to justify the detention of the appellant, the respondents were required to explain as to why

the detention order had not been immediately executed and what were the circumstances which had delayed the execution of the detention order

for over a period of eight months, which the respondents had failed to do in the present case, by filing a cryptic affidavit omitting to meet the

grounds raised by the appellant in his writ petition.

Finding recorded by the Learned Single Judge that he had considered the grounds raised in the petition is, therefore, unjustified because

specific pleas raised by the appellant in his writ petition have neither been adverted to nor considered. Such being the case, non-consideration of

the pleas raised by the appellant in his writ petition would render the impugned order unsustainable.

We would, accordingly, allow this appeal, and set aside Learned Single Judge's judgment of October 1, 2007. H.C.P. No. 86/2007 is,

accordingly, allowed and Order No. 313 of 2006 dated 20th of July, 2006 of District Magistrate, Baramulla, is quashed. A direction shall issue to

the respondents to release the appellant from custody forthwith, if required in any other case.