Abid Nabi Kachroo @APPELLANT@Hash State Of Jammu & Kashmir And Others

In this Habeas Corpus petition, the petitioner challenges the order of detention dated 15.03.2018, whereby the District Magistrate, Baramulla in

exercise of the powers vested in him under Section 8(a) of Jammu and Kashmir Public Safety Act, 1978 has ordered the detention of the petitioner,

with a view to prevent him from indulging in activities, which are prejudicial to the security of the State.Â

The grounds on which the order of detention has been challenged are :-

a) that the order suffers from non-application of mind, inasmuch as, the petitioner was already under arrest in FIR No. 20/2018 u/s 10-13 ULA Act,

registered in Police Station, Sopore and that the detaining authority had not disclosed its mind as to whether it was necessary for him to order the

detention of the petitioner, when he was already under arrest in the said FIR.

b) that the petitioner was prevented from making effective representation, inasmuch as, the entire material on which the order of detention was

passed had not been provided to him and further that the order impugned and the grounds of detention had not been explained to him in the Kashmiri

language, which he otherwise understands.

In reply affidavit filed by the State, a stand is taken that the petitioner was actively working for the militant group of LET outfit and was

motivating the youth of that area to work for the militants. It was stated that the petitioner also provided food, shelter and transportation to the

militants of LET outfit and that illegal letter pads belonging to LET outfit was also recovered from his possession, in regard to which FIR No. 20/2018

u/s 10-13 ULA Act stands registered against the petitioner in Police Station, Sopore.Â

It is further stated that the detenue was under judicial remand in the aforementioned FIR and there was a likelihood of his being released on bail,

as the bail application had already been moved by the petitioner before the Court of competent jurisdiction. It is further state that in case, the

petitioner was released on bail, he may again indulge in similar activities, which were prejudicial for the security of State, particularly in Sopore area.

Heard learned counsel for the parties and have perused the record.Â

From a perusal of the record and as per the execution report, copies of FIR along with documents as also the order of detention, grounds of

detention had been provided to the petitioner against proper receipt. It also appears that the grounds of detention and the detention order were read-

over and explained to the detenue in Kashmiri language, which is otherwise understood by the petitioner. Signatures of the petitioner also appear to

have obtained on the execution report, which is on record. The petitioner also stood informed that he could make a representation to the Government

as also the detaining authority, i.e., District Magistrate against the order of detention, if he so desired.

Insofar as, the argument with regard to the non-application of mind by the detaining authority is concerned, the same also appears to be without

any legal basis.Â

On a perusal of the order impugned, it does appears that the detaining authority was aware of the fact that the bail application had been moved by

the detenue before the Court of competent jurisdiction and there was every likelihood of his being released on bail and that in case he got released on

bail, he would further indulge in similar activities, which were prejudicial to the security of State, particularly in Sopore area.

The Apex court in Binod Singh vs. District MagistrateDhanbad, (1986) 4 SCC 416held that if a person was in custody and there was no imminent

possibility of his being released therefrom, the power of detention should not ordinarily be exercised. It was further held that there must be cogent

materials before the officer passing the order of detention that the detenue was likely to be released on bail. The inference must be drawn from the

available material on record and must not be the ipse dixit of the officer passing the order of detention…...â€​

In Surya Prakash Sharma vs. State of U.P reported in 1994Supp (3) 195, the Apex court in paragraph 5 held as under:

“5. 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 up for consideration before a Constitution Bench in “Rameshwar

Shaw v. District Magistrate, Burdwan. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand

Chelawat v. Union of India wherein a three judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the

question in the following words:

 “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 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 reasonsâ€Â 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.â€​

In Amritlal and others vs. Union Government throughSecretary, Ministry of Finance and others, AIR 2000 SC3675, the Apex Court was dealing

with an order of detention passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 where the

detaining authority had recorded a satisfaction to the extent that even though prosecution proceedings under NDPS Act, 1985 had been initiated

against the petitioner, he was satisfied that there was every likelihood of his moving an application for bail and in the event of his being granted bail,

there was a likelihood of his indulging in illicit traffic in narcotic drugs and thus detained him under the Prevention of Illicit Traffic in Narcotic Drugs

and Psychotropic Substances Act, 1988.

It was held that the reasoning given by the detaining authority was not sufficient compliance with the requirements of law and that the ‘likelihood of

his moving an application for bail’ was different from ‘likelihood to be released on bail’. The Apex Court held thus :

“6.  The requirement as noticed above in Binod Singh‟s case (AIR 1986 SC 2090: 1986 Cri LJ (supra) that there is „likelihood of the

petitioners being released on bail‟ that however is not available in the reasonings as provided by the concerned officer. The reasoning available is

the „likelihood of his moving an application for bail‟ which is different from „likelihood to be released on bail‟. This reasoning in our view is not

sufficient with the requirements as laid down.â€​Â

 “7.  The emphasis however, in Binod Singh‟s case (supra) that before passing the detention order the concerned authority must satisfy

himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material. Available cogent

material is the likelihood of having a bail application moved in the matter but not obtaining a bail order.â€​

Testing the facts of the present case on the touch stone of the ratio of the judgments supra, it thus clear that the order impugned dated 15.03.2018

is a well considered order and the same has been passed after proper application of mind, on the basis of entire material available before the detaining

authority. The fact that the bail application stood filed before the Court of competent jurisdiction has not however been denied by the petitioner. Once

an application for bail is filed, there is every likelihood that the same may be allowed. The satisfaction recorded by the detaining authority that there

was likelihood of the detenue being released on bail, in those circumstances the order impugned cannot be said to be without any legal basis.Â

In view of the aforementioned facts and circumstances of the case, the petition is found to be without any merit and is accordingly dismissed.

The detention record be returned to the learned counsel for the respondents against proper receipt.