IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. HC(W) No.32 of 2008 Mohd. Sadiq petitioner State & Ors. respondents !Mr. N.P.Kotwal, Advocate ^Mr. V.K.Chopra, AAG Mr. JUSTICE J. P. SINGH, JUDGE Date : 08/12/2008 :J U D G M E N T:
Mohd. Sadiq has filed this petition through his wife
Gulshada Begum seeking quashing of District Magistrate,
Doda’s Order No.PSA/DM/JC/06/03 dated 07.03.2007
directing his detention under Section 8 of the Jammu and
Kashmir Public Safety Act, 1978.
Sh. N.P.Kotwal, appearing for the detenu submits that the
District Magistrate had not supplied the detenu all the material
that had been relied upon by him while contemplating issuance
of the impugned order and this omission, according to the
learned counsel had thus disabled the detenu to make effective
representation to the Government against his detention.
Petitioner’s detention, even otherwise, was illegal as there was
no material on records on the basis whereof it may be said that
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there was either any likelihood of detenu’s release on bail in
FIR No. 36/2006 registered at Police Station Gool or indulging
in activities prejudicial to the security of the State when so
released. Learned counsel further urges that the impugned order
suffers from non-application of mind as the detention order,
which appears to have been drawn on 07.02.2007 had been
shown to have been issued on 07.03.2007 and executed much
later in June, 2007.
Sh. V. K. Chopra, learned Additional Advocate General,
has produced the detention records to justify petitioner’s
detention. According to the learned State Counsel, as the
activities of the petitioner were prejudicial to the security of
State, so the detention of the petitioner was warranted. He says
that petitioner has not been prejudiced in any manner
whatsoever because of the non-supply of the material which
had been relied upon by the District Magistrate and the
petitioner’s detention did not suffer from any error of law.
I have considered the submissions of learned counsel for
the parties and perused the records.
Petitioner was in police custody in FIR No. 36/2006
registered at Police Station Gool under Sections 307/121-A
RPC and 7/27 Arms Act when the District Magistrate had
directed his detention under Section 8 of the Jammu and
Kashmir Public Safety Act on the ground that in the event of
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petitioner’s release on bail he would influence and terrorize the
prosecution witnesses.
The detention order, therefore, appears to have been
passed with a view to restrain the petitioner from influencing
and terrorizing the prosecution witnesses in the event of his
release on bail.
Reason projected by the District Magistrate in detaining
the petitioner in preventive custody is wholly unwarranted
because law may not permit curtailment of one’s liberty by the
authorities under the Public Safety Act on grounds other than
those which the legislature in its supreme wisdom has
prescribed under Section 8 of the Public Safety Act. The ground
on which the District Magistrate had proceeded to direct
petitioner’s preventive detention being foreign to those
mentioned in Section 8 of the Public Safety Act, therefore,
renders petitioner’s detention unsustainable.
The records produced by learned State Counsel do not
indicate the existence of any material on the basis whereof it
may be said that there was likelihood of petitioner’s release on
bail or otherwise from Police custody and when so released he
was likely to indulge in activities prejudicial to the security of
State. In the absence of any such material, petitioner’s
detention in preventive custody when he was already in Police
custody cannot be justified in view of the law laid-down by
Hon’ble Supreme Court of India in Surya Prakash Sharma
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versus State of U.P., reported as 1994 SCC (Cr) 1691where
while dealing with a similar question their lordships of Supreme
Court of India had observed as follows:-
“The question as to whether and in what circumstances an
order for preventive detention can be passed against a
person who is already in custody has had been engaging the
attention of this court since it first came for consideration
before a Constitution Bench in “Rameshwar Shaw vs.
District Magistrate, Burdwan,” To eschew prolixity we
refrain from dealing all those cases except that the
Dharmendra Suganchand Chelawat vs. Union of India
wherein three Judge Bench, after considering all the earlier
relevant decisions including Rameshwar Shaw answered the
question in the following words:
(SCC p.754, para 21)
“The decisions referred to above lead to the
conclusion that an order for detention can be validly passed
against a person in custody and for that purpose it is
necessary that the grounds of detention must show that:
i) the detaining authority was aware of the fact
that the detenu is already in detention; and
ii) there were compelling reasons justifying
such detention despite the fact that the detenu is
already in detention. The expression “compelling
reasons” in the context of making an order for
detention of a person already in custody implies that
there must be cogent material before the detaining
authority on the basis of which it may be satisfied
that;
a) the detenu is likely to be released from
custody in the near future, and
b) taking into account the nature of the
antecedent activities of the detenu, it is likely that
after his release from custody he would indulge in
prejudicial activities and it is necessary to detain him
in order to prevent him from engaging in such
activities.”
That apart, the petitioner does not appear to have been
supplied the Police Dossier and the copies of the FIRs which
had been relied upon by the learned District Magistrate while
contemplating petitioner’s detention. This omission deprives
the detenu of his right to make an effective representation
against his detention. This is so because effective representation
against detention may not be contemplated unless the detenu
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would know about the material which had entered the mind of
the detaining authority while contemplating his detention.
Supplying of only grounds of detention minus the copies of FIR
and Police Dossier would thus violate petitioner’s statutory
right of making representation against his detention under
Section 13 of the Jammu and Kashmir Public Safety Act.
Perusal of the records further reveal that the District
Magistrate had proceeded to direct petitioner’s detention on the
basis of Police Dossier which appears to have been drawn on
October 30, probably of the year 2006 because the Dossier
contains only the date and month of its signing by
Superintendent of Police Ramban and does not indicate the year
in which it had been prepared by the Superintendent of Police.
Interpolation in the impugned detention order too
indicates that the District Magistrate had exercised jurisdiction
in detaining the petitioner in a mechanical fashion. No reasons
are forthcoming from the records as to why there was delay of
nearly three months in execution of the detention order when
the petitioner was already in police custody.
All the aforementioned factors thus demonstrate that the
District Magistrate had issued the impugned detention order
without application of mind and in violation of the
Constitutional and Statutory right of the petitioner depriving
him of his right to make effective representation to the
Government against his detention. The detention order
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impugned in this petition is, therefore, liable to be quashed
being in violation of Article 22 (5) of the Constitution of India
reads with Section 13 of the Jammu and Kashmir Public Safety
Act.
Allowing this petition, District Magistrate, Doda’s Order
No. PSA/DM/JC/06/03 dated 07.03.2007, is, accordingly,
quashed. A direction would thus issue to the respondents to set
the petitioner to liberty forthwith, if not, required in any other
case.
Detention records be returned to the State Counsel.
(J. P. Singh)
Judge
Jammu.
08.12.2008
Pawan Chopra
