Mohd. Ashraf vs State and Others

Mohd. Yaqoob Mir, Judge

Detenues, namely, Mohammad Ashraf Dar and Ghulam Hassan Wani, on whose behalf two separate petitions have been filed, in connection

with case FIR No. 09 of 2010 for commission of offence punishable under Sections 420, 120-B, 177, 272 RPC, 3/7 EC Act and 16 Prevention

of Food Adulteration Act had been arrested. While in custody have been detained under the provisions of Public Safety Act pursuant to detention

orders impugned bearing No. 12/DMP/PSA/2010 and 10/DMP/PSA/09 dated 30.1.2010, passed by District Magistrate, Pulwama. Aggrieved

by the orders of detention impugned, instant petitions seeking quashment of the same have been filed.

The detenues along with other associates are alleged to have indulged in preparation of saffron like commodity so as to sell it as saffron in open

market especially to tourists, the resultant effect is to defame Kashmiri saffron. Such like acts of the detenues and their associates are alleged to

have caused irreparable damage to the saffron trade. It is also alleged that the genuine saffron growers and traders were shocked, annoyed and in

case detenues remain-at large, the concerned growers may take law into their own hands which will threaten the public order. It is also mentioned

that thousands of people of Pampore are emotionally charged to launch severe agitation, therefore, detenues and their associates are posing threat

to the peace and tranquility in the area. Finally in terms of grounds of detention it has been projected that normal laws would not be enough to

deter the detenues from indulging in the said activities when the activities are detrimental to the peace and tranquility and above all public order in

the area.

First it is contended by the learned counsel that the activities attributable to the detenues do not fall within the ambit of Section 8 of the Public

Safety Act which provide for detention of certain persons. No doubt the alleged acts committed by the detenue fall within the scope of penal

provisions such as 420, 120-B, 177, 272 RPC, 3/7 EC Act and 16 Prevention of Food Adulteration Act regarding which a regular criminal case

has been registered.

In opposition the learned counsel for the respondents vehemently contended that the feelings of the genuine saffron growers and traders are hurt

by the acts of the detenue so they may act against them which would give rise to disturbance of public order, therefore, the Detaining Authority

was justified in passing the order of detention.

The expression ""acting in any manner prejudicial to the maintenance of public order"" as occur in Section 8 of the Public Safety Act, whether

takes into its sweep the alleged criminal act of the detenue, is a question to be answered.

The apprehension of the Detaining Authority that the genuine saffron growers and traders may launch an agitation, shall be an act attributable to

them for disturbing the public order. When the detenues allegedly have committed a criminal act, for that police machinery has swung into action,

case has been registered and it is for the competent court of law to decide as to whether detenues have committed the offence and then to pass

appropriate orders which may or may not include the conviction on proper proof. The solitary instance of committing such a criminal act if not

attempted to be repeated, will not warrant having resort to preventive measures so as to deter the detenue from committing such acts. In case the

detenues will repeat or attempt to repeat the acts as alleged, then nothing prevents the objector rather State in seeking cancellation of their bail as

has been granted by the competent court of jurisdiction. The act committed by the detenues cannot be termed to be an act prejudicial to the

maintenance of public order unless there is an element of repetition enough to infuriate the public to disturb the public order.

The contention that the detenues have not been furnished the material so as to enable them to make an effective representation, has a substance

as in the detention record it is nowhere mentioned that the record forming base for the order of detention has been furnished to the detenues though

the grounds of detention are shown to have been read over and explained to the detenues and it has also been mentioned that the relevant

documents of detention have been handed over to the detenues but what where the documents handed over to them are not shown. Secondly the

receipt as is shown to have been obtained from the detenue vis-a-vis receipt of the grounds of detention would indicate that only two leaves have

been received by the detenues. What are those two leaves in fact are grounds of detention comprising of two leaves which have been furnished to

them which is not a sufficient compliance because law provides that all the material forming base of detention should be furnished to the detenue. It

is not forthcoming from the records that the statements recorded u/s 161 Cr. P. C. in connection with the case registered as FIR No. 09/2010

have been furnished to the detenues which is a serious lapse and prejudices the right of the detenues in making an effective representation. In this

connection it shall be quite apt to quote following para of the judgment captioned Sophia Gulam Mohd. Bham Vs. State of Maharashtra and

Others, :

...The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the

grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made

and the order of detention can be assailed only when all the grounds on which the order is based ore communicated to the detenue and the material

on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.

The next contention which has remained to be controverted is that the District Magistrate has fixed the period of detention as six months when

until approval by the Government the detention order u/s 8(4) of the Public Safety Act has to remain valid only for twelve days and District

Magistrate could not fix the period of detention, which would indicate that the Detaining Authority has not applied its mind properly.

The order of detention in effect deprives a person of his liberty. For such deprivation there shall be a cogent material. An isolated criminal act,

which can be sufficiently taken care of under the ordinary law, shall not warrant exercise of power u/s 8 of the Public Safety Act.

Viewed thus, orders of detention impugned bearing No. 12/DMP/PSA/2010 and 10/DMP/PSA/09 dated 30.1.2010, for the stated reason do

not stand the test of law so are quashed. The detenues, namely, Mohammad Ashraf Dar S/O Nabir Dar R/O Befina Pampore and Ghulam Hassan

Warn S/O Mohammad Shaban Wani R/O Namblabal Pampore be released forthwith provided they are not required in connection with any other

case.

Detention record be returned to the counsel for the respondents.