Mohd.Sadiq vs District Magistrate, Doda and other

This petition has been moved by the fatherin law of the detenu namely, Riaz Ahmad Rather S/o Abdul Ahad Rather R/o Mohalla Shinal Doda,

praying for quashing of detention order No: 15456/DM/Doda dated: 2851994. The detenu is a peon in the Treasury Office Doda. It appears, that

a FIR was registered against him with Police Station, Gandoh on 22121993 bearing No: 61 of 1993 under the provisions of Terrorist and

Disruptive Activities (Prevention) Act, and he was taken into custody. While he was in custody, the detention order came to be passed against him

by District Magistrate, Doda on 2851994. The District Magistrate on the basis of material placed before him came to the conclusion that the

activities of the detenu were prejudicial to the security of the State, and therefore, he ordered his detention in terms of provisions of Public Safety

Act, 1978. The contention of the petitioner is that the detenu has not committed any offence whatsoever, and he was not indulging in any activities

which were prejdicial to the security of the State, which would warrant his detention under the provisions of Public Safety Act. The detention order

has been challenged on various grounds, including the one that he was in custody when the detention order was passed and served on the detenu.

The detaining authority has not taken into consideration the pendency of a criminal case against him while arriving at subjective satisfaction of

ordering detention of the detenu. The grounds of detention also disclosed, as under:

You were later on arrested in case FIR No. 61/93 under section 3/4 TADA etc. Police Station Gandoh on 221293, and since then you are in

Police custody.

In the light of the above grounds which are based on dossier submitted by Superintendent of Police, CID, CI, Jammu, I have arrived at the

conclusion that your aforementioned activities are prejudicial to the security of the State. Although you are in Police custody, your detention under

the provisions of Public Safety Act, 1978 is absolutely necessary to prevent you from indulging in similar activities.

Counsel for the petitioner submits that although the detaining authority was aware that the detenu was in Police custody for almost five months,

but it was not disclosed as to what were the compelling reasons justifying the detention on of the detenu under Public Safety Act. It appears, that

the detaining authority was not even aware as to whether any bail application had been moved by the detenu or not? The counsel for the petitioner

has drawn my attention to a Judgment of the Supreme Court in case titled: Vijay Kumar V/s Union of India reported in AIR 1988 SC 934, in

which it has been held that the grounds of detention should disclose:

1) Awareness of the detaining authority of the fact the detenu is already in detention;

2) There must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention"".

The learned counsel for the petitioner has also referred to a Judgment of this Court delivered in HC petition No: 646 of 1994 in support of his

case.

From the persual of record, it appears that although the detaining authority was aware that the detenu was in custody, but he has failed to give

any reasons, much less, compelling reasons in the grounds of detention justifying passing of detention order under JandK Public Safety Act against

the detenu. The impugned order therefore deserves to be quashed on this ground alone. My attention was also drawn to AIR 1989 SC page

2265. Although, in that case the detaining authority had said "" there are full possibilities that you may be released on bail in this offence also"",

•even then the Supreme Court did not approve of the detention of the detenu on the ground that the detaining authority was completely unaware

of the fact that at all any application for bail was made on behalf of the detenu for his release before the Designated Court. And as the possibility of

his coming out on bail was nonexistent, therefore, the detention was not approved. In the present case also, the detaining/authority was not aware

as to whether there was any application for bail pending before the Designated Court, and whether there was any possibility of detenu getting

bailed out.

For the foregoing reasons, I do not think that it is necessary for this Court to go into other grounds agitated by the petitioner for getting the

detention order quashed. As a result, I allow this writ petition and quash the order of detention bearing No: 15456/IM/Doda dated: 2851994

pased by respondent No: l,and direct the respondents as also the Incharge Jail wherever the detenu is lodged, to release him forthwith from

custody, in case he is not wanted in some other case.

This petition is disposed of accordingly.