Nissar Hussain Rather vs State Of Jammu & Kashmir And Anr

Detenu - Shri Nissar Hussain Rather son of Late Ali Mohammad Rather resident of Khomani Chowk, Srinagar, through his wife seeks quashment of detention order No.DMS/PSA/32/2018 dated 05.10.2018, passed by District Magistrate, Srinagar (for brevity "Detaining Authority"), directing preventive detention of the detenu.

1) The detention order, through the medium of petition on hand, has been challenged on the grounds that the detenu was arrested in the month of April, 2018 and was implicated in case FIR No.71/2018. The detenue had applied for bail which was granted by the Court of Sub Judge Special Mobile Magistrate, Srinagar, but was not released and instead was detained in terms of impugned order without application of mind. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded.

Respondents, on notice, filed counter affidavit refuting the averments/grounds made in the writ petition. Learned Additional Advocate General, in support of the stand taken in the counter affidavit, has made available the record.

Heard learned counsel for the parties and perused the record.

2) Learned counsel for the petitioner contended that that the detenue had been admitted to bail in FIR No.71/2018 but this fact has not been made mention of in the grounds of detention though reference to said FIR has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyse all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "Anant Sakharam Rautv. State of Maharashtra and another" reported in AIR 1987 SC 137:-

"We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith......"

Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, question arises for consideration whether an order of detention could be passed on the face of such an eventuality? The answer to this question is emphatically "No", taking into consideration the law laid down by the Hon'ble Apex Court in "Sama Aruna v. State of Telangana & Anr" (AIR 2017 SC 2662). Para 24 of the said judgment is apposite to be quoted herein below:

"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:

"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

In view of the law laid down by the Hon'ble Apex Court, as quoted above, the impugned order is not sustainable on the above referred grounds alone, therefore, other grounds projected in the petition are not required to be dealt with.

Taking conspectus of the above discussion, the petition is allowed and the impugned detention order bearing No.DMS/PSA/32/2018 dated 05.10.2018, passed by District Magistrate, Srinagar, being unsustainable, is quashed. Detenue is directed to be set free from the preventive custody forthwith provided he is not required in connection with any other case.

Registry to return the detention record to the learned counsel for the respondents.