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: J U D G M E N T : vs Esa And 7/25 Arms Act At Police … on 30 December, 2008

Jammu High Court
: J U D G M E N T : vs Esa And 7/25 Arms Act At Police … on 30 December, 2008
       

  

  

 

 
 
 IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.             
HC(W) No.29 of 2008  
Mohammad Taj   
Petiotioner
State & Ors 
Respondent  
!Mr. Rajneesh Oswal, Advocate 
^Mr. V.K.Chopra, AAG  

MR. JUSTICE J.P.SINGH, JUDGE     
Date : 30/12/2008
: J U D G M E N T :

Mohammad Taj has filed this petition through his brother
Mohammad Zaman seeking quashing of District Magistrate,
Jammu’s order No. 16/PSA of 2007 dated 21.11.2007 passed
under Section 8 of the Jammu and Kashmir Public Safety Act,
1978 to prevent him from indulging in activities prejudicial to
the security of State.

His Counsel, Mr. Rajneesh Oswal submits that petitioner
was on bail in FIR no. 62/2007 registered under Sections 4/5
ESA and 7/25 Arms Act at Police Station, Channi Himmat,
Jammu, when without there being any material on records
justifying his detention under preventive custody, he was
erroneously ordered to be detained by District Magistrate,
Jammu. He questions District Magistrate’s order on yet another
ground that the detention order issued on 21.11.2007 was
executed only on 3rd March, 2008 which proved that there was
no proximate link between the grounds of detention and
purpose therefor.

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Mr. V. K. Chopra, learned AAG, on the other hand,
submitted that in view of the nature of activities of the
petitioner, the District Magistrate was justified in directing his
preventive detention as the petitioner was likely to indulge in
activities prejudicial to the Security of State. Learned counsel
submitted that delay in execution of the detention order would
not affect legality of petitioner’s detention, in that, detention
order could be executed at any time, the detaining authority so
desired.

I have considered the submissions of learned counsel for
the parties.

Petitioner’s specific plea appearing in paragraph No.
7 (F) of his petition that delay of 101 days in executing the
detention order, when the petitioner had not absconded, would
render his detention illegal, has not at all been adverted to by
the District Magistrate in the counter affidavit filed in answer to
the petitioner’s petition. Records produced by learned State
counsel too do not indicate as to why the detention order issued
on 21.11.2007 had not been executed for more than three
months.

Inaction of the respondents and that too without any
explanation, as to why the detention order issued in November,
2007 had remained unexecuted till March 2008 demonstrates
passing of detention order in a routine manner. Had the
detaining authority intended to prevent any such activity of the
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petitioner, which would have been prejudicial to the security of
State, there would not have been any remissness on behalf of
the District Magistrate and the law enforcing agencies, in
executing the detention order, particularly when the petitioner is
not stated by the State respondents to have been absconding.
Apprehension gathered by the learned District
Magistrate, as it so appears in the grounds of detention, that the
petitioner, though on bail, would continue to work for terrorists
thus appears to be misconceived because had it been so, the
detention warrant should have been executed without any loss
of time.

In the absence of any explanation by the District
Magistrate and the law enforcing agencies as to why the
detention order had not been executed for more than three
months, coupled with respondents’ omission to take recourse to
the provisions of Section 12 of the Public Safety Act which
provides for invoking provisions of Sections 87, 88 and 89 of
the Code of Criminal Procedure in case of absconding persons,
I am constrained to hold that the apprehension of learned
District Magistrate that petitioner would indulge in activities
prejudicial to the security of State, was unfounded.
That apart, the detention records do not contain any such
material, on the basis whereof, it may be said that the petitioner,
who was on bail, was likely to indulge in activities prejudicial
to the security of State.

4

State counsel’s submission that detention order once
issued could be executed at any time and that too at the
discretion of the State Agencies, is utterly misconceived, in
that, for exercising jurisdiction under Section 8 of the Jammu
and Kashmir Public Safety Act, live and proximate link
between the grounds of detention and purpose therefor must
exist. Delay in execution of the detention warrant snaps this
link thereby disabling the detaining authority to curtail one’s
liberty at a belated stage. Such a disability would not, however,
apply in a case where the detenue had been responsible for
avoiding execution of detention warrant. No such case of
avoidance of execution of detention warrant, by the detenue,
has, however, been projected by the State authorities. Mr.
Chopra’s submission thus fails and is, accordingly, rejected.
Non-execution of detention order issued in respect of the
petitioner for over a period of three months without any
explanation therefor renders petitioner’s detention unsustainable.
Grounds of detention on which petitioner has been
detained, too do not indicate any such activity of the petitioner,
after his release on bail by learned 2nd Additional Sessions
Judge, Jammu in FIR no. 62/07 on 16.11.2007 on the basis
whereof impugned detention order may be justified.
In this view of the matter, petitioner’s detention in
preventive custody on grounds similar to those which had
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appeared in FIR no. 62/2007, in which he had been released on
bail, cannot be justified.

For all what has been said above, it is, therefore,
established that the learned District Magistrate had no material
before him, on the basis whereof, satisfaction in terms of
Section 8 of the Jammu and Kashmir Public Safety Act, 1978
could be recorded that the petitioner was likely to indulge in
activities prejudicial to the security of State. Order passed by
learned District Magistrate thus lacks application of mind.
I am, therefore, of the opinion that the detention order
issued by District Magistrate, Jammu for the detention of
petitioner suffers from non-application of mind and is even
otherwise unjustified for the reasons mentioned hereinabove.
Allowing this petition, District Magistrate, Jammu’s
detention Order no. 16/PSA of 2007 dated 21.11.2007 is
accordingly quashed. A direction shall accordingly issue to the
respondents to set the petitioner to liberty, if not required in any
other case.

Detention records to be returned to the learned State
Counsel.

(J. P. Singh)
Judge
Jammu.

30.12.2008:

Tilak, Secy.

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