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Judgment
Sanjeev Kumar, J
The petitioner is aggrieved of and has called in question his detention ordered by the District Magistrate, Srinagar (the “Detaining Authority”) vide Order No. DMS/PSA/147/2022 dated 4th November, 2022, whereby the petitioner has been placed under preventive detention, with a view to prevent him from acting in any manner prejudicial to the maintenance of security of State.
The impugned order is assailed at pre-execution stage on the following grounds:
a. That the impugned order has been issued for oblique purposes i.e. punishing the petitioner without trial;
b. That the impugned order was passed on 4th March, 2022 but the same was not executed for more than a month despite the fact that the petitioner was available and regularly attending the trial in case FIR No. 10/2022 before the Court of Special Judge NIA, Srinagar; and
c. That the impugned order suffers from total non-application of mind by the Detaining Authority, in that, the Detaining Authority has not shown any awareness about the petitioner having been arrested in FIR No. 10/2022 and subsequently released on bail. The Detaining Authority has also failed to take note of the fact that the competent court of jurisdiction i.e. Court of Special Judge NIA, Srinagar, had granted bail to the petitioner despite rigors of Section 43 (d) of Unlawful Activities (Prevention) Act, 1967 (for short the “Act of 1967”)
On being put to notice, the respondents have filed their reply affidavit.
In the reply affidavit, the respondents have referred to the legal position on the subject, but have not specifically dealt with the aforesaid aspects highlighted by the petitioner in the petition.
On the last date of hearing, the respondents were directed to produce the detention record, but the same too has not been made available.
It is also pertinent to note that this Court while entertaining the petition and issuing notice to the respondents for filing the reply affidavit, also stayed the execution of the impugned Order, vide its order dated 6th December, 2022.
The petitioner is, therefore, enjoying his freedom due to inability of the respondents to execute the detention order in view of the interim direction passed by this Court. The respondents have also not brought to notice of the Court any incriminating or objectionable activity of the petitioner after stay of the impugned order of detention by this Court vide Order dated 16th December, 2022.
Having heard the learned counsel for the petitioner and perused the material on record, I am of the considered opinion that the order impugned is per se illegal and cannot sustain in the eye of law.
From reading of the grounds of detention, it transpires that the basis of issuance of the impugned order of detention is registration of two FIRs i.e. FIR No. 70/2016 under Sections 147, 148, 149, 336, 332 and 341 of RPC registered at Police Station, Karan Nagar and FIR No. 10/2022 under Sections 13, 16, 38 and 39 of the Act of 1967 registered at Police Station Kothi Bagh, Srinagar.
So far as the first FIR is concerned, same pertains to the year 2016, therefore, the allegations contained in the aforesaid FIR are too stale to be taken into consideration for ordering detention of the petitioner under Jammu & Kashmir Public Safety Act, 1978. So far as FIR No. 10/2022 is concerned, the same has been investigated and challaned in the Court of learned Special Judge Designated under NIA Act, Srinagar.
The petitioner as is evident from the bail order placed on record, has already been set at liberty in the aforesaid FIR by the learned Special Judge Designated under NIA Act, Srinagar, on bail. The petitioner as is apparent from the reading of interim orders dated 4th November, 2022 and 1st December, 2022, passed in case FIR No. 10/2022 pending trial before the Court of learned Special Judge Designated under NIA Act, Srinagar, has been regularly appearing in the court. In these circumstances, there could be no reason or justification with the respondents not to execute the impugned order of detention for a period of one month, despite the availability of the petitioner. It is not the case of the respondents that the petitioner was absconding or that a process for his apprehension had been issued by the Detaining Authority or the police. That apart, from reading of the grounds of detention, it clearly transpires that the Detaining Authority was not even aware as to whether the petitioner had been arrested in FIR No. 10/2022 and had been granted bail by the competent court of jurisdiction, despite the rigors of Section 43-D of the Act of 1967. No compelling reasons have been spelled out either in the impugned order of detention or in the grounds of detention, which have necessitated the passing of the impugned order of detention, despite the fact that the petitioner had been facing trial before the Court of learned Special Judge Designated under NIA Act, Srinagar, in case FIR No. 10/2022.
Supreme Court of India in case titled “Sushanta Kumar Banik vs State of Tripura & Ors” bearing “Criminal Appeal No. 1708/2022” decided on “30th September, 2022” has dealt with the similar issues as have been raised by the learned counsel for the petitioner in this petition. Paras 22 and 23 of the judgment are relevant and are thus, reproduced hereinbelow:
“22. As noted above, in the case on hand, in both the cases relied upon by the detaining authority for the purpose of preventively detaining the appellant herein, the appellant was already ordered to be released on bail by the concerned Special Court. Indisputably, we do not find any reference of this fact in the proposal forwarded by the Superintendent of Police, West Tripura District while requesting to process the order of detention. The reason for laying much stress on this aspect of the matter is the fact that the appellant though arrested in connection with the offence under the NDPS Act, 1985, the Special Court, Tripura thought fit to release the appellant on bail despite the rigors of Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 reads thus:
“Section 37. Offences to be cognizable and non-bailable.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”
A plain reading of the aforesaid provision would indicate that the accused arrested under the NDPS Act, 1985 can be ordered to be released on bail only if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. If the appellant herein was ordered to be released on bail despite the rigors of Section 37 of the NDPS Act, 1985, then the same is suggestive that the Court concerned might not have found any prima facie case against him. Had this fact been brought to the notice of the detaining authority, then it would have influenced the mind of the detaining authority one way or the other on the question whether or not to make an order of detention. The State never thought to even challenge the bail orders passed by the special court releasing the appellant on bail.
In the present case also, the petitioner is also facing trial under Sections 13, 16, 38 and 39 of the Act of 1967 and these offences fall under Chapter IV of the Act and, therefore, rigors of Section 43-D are attracted in the matter of grant of bail. The Court of learned Special Judge Designated under NIA Act, Srinagar, has considered the bail plea of the petitioner on merits and granted bail to the petitioner, despite rigors of Section 43-D and this aspect ought to have been considered by the Detaining Authority before passing the impugned Order of detention.
For the foregoing reasons, the impugned Order is found to be prima facie not tenable in law. That apart, the impugned Order which was passed on 4th November, 2022, has remained unexecuted for almost one and half year and there is nothing on record that during this period, the petitioner has indulged in any anti-national or objectionable activities.
For all the above reasons, I find merit in this petition and the same is accordingly allowed, resultantly, the impugned Order bearing No. DMS/PSA/147/2022 dated 4th November, 2022, is quashed.
Nothing said hereinabove shall come in the way of the respondents to pass fresh order of detention, if the petitioner has after the issuance of the impugned order detention indulged in any anti-national or objectionable activity, necessitating his preventive detention.
Writ petition disposed of along with connected applications in the manner as indicated above.