Yousuf Lone vs State of J. and K. and Another

A.M. Magrey, J.—This Letters Patent Appeal under Clause 12 of the Letters Patent has been filed against the judgment and order dated

13-8-2012 passed by the learned single Judge dismissing Habeas Corpus Petition (HCP) No. 426/2011. In order to appreciate the grounds

pleaded in the appeal it becomes imperative to give a brief resume of the facts. In terms of order No. 30/DMB/PSA/2011 dated 14-9-2011,

respondent No. 2, in exercise of powers vested in him under Clause (a-1) of Section 8 of the J & K Public Safety Act, 1978 ordered detention of

the detenu, namely, Yousuf Lone son of Lassi Lone resident of Charhar. Tehsil Sopore, District Baramulla, to prevent him from acting in any

manner which is a threat to ecology and environment.

Before the order of detention could be executed, the detenu filed an Habeas Corpus petition seeking quashment of the same on various

grounds, including that:

a) he has never acted in such a manner which would be prejudicial to the ecology and environment;

b) that he was never arrested on any allegation as mentioned in the grounds of detention and was not involved in any such related offence;

c) that the detention order is based on concocted grounds, and the copies of the detention order and grounds of detention were not furnished to

him; instead he obtained the same from the office of respondent No. 2 after filing an application under RTI Act;

d) that he moved a representation against the detention order showing his innocence as he is not involved or accused in any of the FIR's alleged

against him but the same was not decided;

e) that the detention order was not confirmed by the Government within 12 days and also was not executed as on the date of the filing of the HCP;

f) that the order of detention has become infructuous in the eyes of law and that he cannot be detained under the aforesaid Act, which would result

in miscarriage of justice and the detention order would operate as punishment rather than prevention;

g) that the District Magistrate (detaining authority) has not applied his mind as there was no compelling reason and cogent material available before

the detaining authority, nor is there any such thing mentioned in the order and grounds on the basis of which respondent No. 2 has made his

subjective satisfaction;

h) that in the grounds of detention, the detenu is shown to be involved in FIR Nos. 68, 72, 76, 69 of 2011 P/S Sopore, but he said FIRs are

general in nature and the petitioner has never been arrested, which shows his non-involvement in the said FIRs;

i) that the grounds are vague and non-existent in the eye of law and he is not involved in any activities alleged in the grounds of detention and has

been implicated in a false and fabricated case;

On the aforesaid set of facts and grounds, the detenu prayed for quashing the detention order and restrain the respondents to detain him in

pursuance of the aforesaid order.

While considering the case for admission, the learned Writ Court observed that no ground is made out to entertain the petition. However, the

Writ Court issued notice to respondents for filing objections, but dismissed the interim application seeking stay of execution of the warrant of

arrest.

The respondents filed a detailed reply, wherein it has been submitted that the detenu is a chronic and habitual timber smuggler. The detenu has

caused colossal damage to the forest wealth and has made timber smuggling his profession thereby causing unbearable loss to the national

economy. It is submitted that nefarious activities of the detenu have come in the notice of the Forest Department who initiated action against the

detenu under the Provisions of Forest Act from time to time in order to prevent him from acting in a manner as would cause damage to the forests.

But the measures adopted under he. Forest Act have not curbed his activities.

Respondents further submitted that in order to prevent the detenu from committing offensive activities, it has become imperative to detain him

under the provisions of PSA, so that detenu's activities of timber smuggling are effectively curbed and forest wealth is saved from detenu's

onslaught. It is further submitted that the petitioner has evaded arrest though the concerned police authorities swung into action to ensure execution

of the order, therefore, on this ground the petitioner cannot maintain the writ petition and without execution of warrant no writ of Habeas Corpus is

maintainable.

After considering the facts and the grounds pleaded by the petitioner and also on the strength of the reply filed by the respondents coupled with

the perusal of the detention records, the learned writ dismissed the writ petition (HCP) by holding that no case is made out which would call for

interference at this pre-execution stage.

In the present appeal, appellant-detenu has reiterated the same set of facts and the grounds taken in the petition which need not to be reiterated

as a mention of the same has been made hereinabove. However, besides the facts and grounds of challenge detailed out in the petition, learned

counsel for the petitioner has submitted that order of detention cannot be executed after inordinate delay. In support of his submission, he has

relied upon the judgment of the Supreme Court in Manju Ramesh Nahar Vs. Union of India and Others,

We have minutely gone through the aforesaid judgment. Paragraph 7 of the said judgment is relevant to quote; '....This implies that as soon as

the Govt. or its officer feels satisfied that an order under this section is necessary, it has to be passed and implemented forthwith so that the

prejudicial activities carried on by the person against whom the order has been passed, may be stopped immediately or at the earliest.'

The ratio decidendi of a judgment cannot be read as a Statute, as has been held by Hon'ble the Supreme Court in case titled Executive

Engineer, Dhenkanal Minor Irrigation Division, Orissa, Vs. N.C. Budharaj (Dead) by Lrs. etc. etc., .

In the instant case, it is highlighted that the execution of the order was evaded by the petitioner, therefore, there is no inordinate delay in its

execution on the part of the respondents.

Learned counsel has also relied on the judgment in the case of T.A. Abdul Rahaman Vs. State of Kerala and others, wherein it has been held

that when there is undue long delay in between the prejudicial activities and passing of the detention order, then Court has to scrutinize as to

whether detaining authority has satisfactorily determined such delay and offered reasonable explanation. The law as laid down is not applicable to

the present case because in the instant case activities of the petitioner continued and last such activity was noticed on 5-8-2011 and me detention

order has been passed on 14-9-2011; but the order of detention has not been executed because the petitioner has evaded the arrest as is

discernible from the records as produced. The delay is not such which would render the order, in view of the above referred law, as useless.

To seek quashment of pre-execution detention order, an exceptional case has to be made out. The order of detention, in view of evading

tactics of the petitioner, has not been executed up to this stage, no flaw is noticeable which would persuade the Court to treat the case as an

exceptional one so as to invoke the powers for quashing the order of detention before it is executed. The detention record would suggest that the

detaining authority has adhered to the norms and procedure applicable up to this stage, therefore, no case is made out which would call for

interference, as has been rightly held by the learned single Judge. The appeal does not merit admission and is thus liable to be dismissed.

Accordingly the appeal fails and the same is dismissed.