Nazir Ahmad Malla vs State and Others

R.C. Gandhi, Judge

Petitioner - detenue, Nazir Ahmad Malta S/o Mohd. Abdullah Malta R/o Rajpora Palhallan, Rattan seeks to quash detention order no DMK/

PSA/54 of 2001 dated 6.7.2002, passed by the District Magistrate, Magistrate Baramulla, in exercise of powers u/s 8 of the Jammu and Kashmir

Public safety act, 1978 (hereinafter to be referred to as the act) directing preventive detention of the detenu which subsequently has been

confirmed by the respondent Government for 24 months, detention of the detenu which subsequently has been confirmed by the respondent

Government for 24 months.

The detention order has been challenged on various grounds including that the District Magistrate has illegally exercised the power and

jurisdiction to detain the detenu could have been proceeded under the substantive panel law. It is also one of the grounds that detenue was already

in the custody of the respondents and despite that preventive detention of the detenue has been directed vide impugned order without showing the

compelling reasons by the Detaining authority.

Respondent have filed the Counter Affidavit controverted the grounds taken in the memorandum of the petition.

Heard learned counsel for the parties and perused the record.

The-perusal of the record reveals that the detenu has been taken in preventive custody vide impugned order on the alleged grounds which are

contained in the grounds of detention, the relevant portion of which is extracted below and reads as:

You are a Diploma Engineer by profession. You came into contact with Bashir Ahmad Rather for trafficking in fake currency notes in the State by

cheating the innocent and the illiterate people, and to destablize and shatter the economy of the State. You being an unemployed, and being close

friend of one Farooq Ahmad introduced Haji Bashir Ahmad Rather of Ganderbal for counterfeiting fake currency notes. You alongwith Bashir

Ahmad Rather and Rafiq Ahmad visited Patna Bihar to exchange genuine currency notes with fake currency notes but failed. Thereafter your

procured a computer for counterfeiting currency notes and installed the same in the house of Bashir Ahmad Rather at Ganderbal. You also

managed the services of Gh. Nabi Khan for operating of the machine and subsequently in printing of the fake currency notes.

You also developed the contacts with Mst.Shamshada Manager Co-operative Bank Ganderbal who assured her help in circulation of fake

currency notes through her bank and accordingly 40 lakh of fake currency notes were counterfeited by you and your associates. You provided Rs.

1500/- of fake currency notes to one of your friend namely Fayaz Ahmad Mir R/o Athora and were on way to Sopore to put in circulation the said

amount. However BSF patrolling party while conducting search of the vehicles at Sopore arrested you and your associate and recovered Rs.

1500/- of fake currency from you. The Police has so far been able to make a recovery of 26 lacs and 40 thousand of fake currency notes. Case

FIR No, 116/02 u/s 489-A, 489-B, 489-C RPC stand registered at Police Station at Sopore.

Section 8 of the Act enumerates elaborately and specifically the activities and the grounds which give jurisdiction to District Magistrate or any

other mentioned in Sub Section 2 of the Section 8 to direct preventive detention of the detenu if he is found involved in the said activities, the

petitioner detenu has been found involved in the said activities. The petitioner detenu has been found involved in circulation of counterfeiting fake

currency notes along with his associate. This situation is not covered in those specified activities and the grounds u/s 8 of the Act for directing

preventive detention.

Learned counsel for the respondents in reply has submitted that detenu has been detained for his activities prejudicial to the security of the State

which includes the circulation of counterfeiting fake currency notes also. It is not made out by any reference of law or judgment that any citizen

having involved in case of counterfeiting fake currency can be detained on the ground of being threat to the security of the State. Notwithstanding

that it is also submitted that the Security of State has wider meaning and includes this situation also. One can understand that the Security of the

State is under threat if a citizen is found involved in the activities which are designed, to over throw the Government establish by law or any

establishment of the Government created to protect the integrity and sovereignty of the State is challenged or any act is done to damage or

jeopardize it. Circulation of counterfeit currency as is in this case does not fall under any of these situations, which can be said to create a situation

of a threat to the security of the State. Has it been so, the Legislature would have added this criminal activity also in Section 8 of the Act. These are

the two different situations. The petitioner detenu is not involved in any militancy related activities or other activities which are specified in Section 8

of the Act. It is also not a ground for detention of the detenu that the counterfeit currency has been received from any militant outfit and is being

used to advance the cause of any such outfit which is to destabilize the Government duly established by law. Petitioner detenu could have been

dealt with under the provisions of other substantive laws which are sufficient to deal with such alleged offences. I do not find that the District

Magistrate has the jurisdiction in such cases to direct preventive detention in exercise of powers u/s 8 of the Act.

Another plea of the learned counsel for the petitioner is that the detenu was already in the custody of the respondents in FIR No. 116 of 2002

for commission of alleged offences u/s 489-A, 489-B, 489-C RPC registered with Police station Sopore and the detaining Authority was under

legal obligation to record the compelling reasons for preventive detention of the detenu already in the custody of respondents. The purpose of

preventive detention is to prevent the detenu from his such activities. He was already in the custody of respondents in substantive offences and

being so he was not in such position to carry out his such activities which stood prevented by his custody with the respondents. Therefore, law

makes it obligatory upon the detaining Authority to show the compelling reasons for directing preventive detention in such situation. If the

compelling reasons are not spelt out, the detaining Authority cannot resort to invoke section 8 of the Act. This proposition of law was also in issue

in habeas Corpus petition No. 137/ 2001 titled Abdul Rashid Bhat v. State of Jammu and Kashmir and another, wherein it has been held:

The perusal of the grounds of detention and the Counter Affidavit do not reveal that the Detaining Authority was satisfied that despite the custody

of the detenue with the respondents he is still required to be detained in preventive detention. It is settled proposition of law that Detaining

Authority on subjective satisfaction derived on the basis of record, can direct preventive detention, while the detenue is already in custody against

the substantive offences but for doing so the Detaining Authority has to disclose the compelling reasons for such detention. It has not been

disclosed either in the Counter Affidavit or in the grounds of detention. The only subjective satisfaction derived by the Detaining Authority is that

the ordinary law of the land is not sufficient to curve the detenue from continuing such anti-state activities. It is no ground for directing preventive

detention.

The Detaining Authority has not disclosed the compelling reasons for the preventive detention, as noticed above, either in the grounds of

detention or in the Counter Affidavit, in absence of which the detention or in the Counter Affidavit, in absence of which the detention order, being

suffering from legal infirmity, cannot be maintained.

For the reasons stated herein-above, the Detention Order deserves to be quashed, which is accordingly quashed Respondents are directed to

release the detenu Nazir Ahmad Malla S/o Mohammad Abdullah Mall R/o Rajpora Palhallan, Rattan forthwith if not required in any other case.

Petition is accordingly disposed of.