Gh. Qadir Raina vs State and Others

Syed Bashir-Ud-Din, J.—Ghulam Qadir Raina has been detained by District Magistrate, Anantnag (respondent No. 2) under his Order No.

F-125/DMA/PSA/Det/99/2015-21 dated 30-11-1999 u/s 8 of J & K Public Safety Act, 1978 on the ground of preventing him from acting in any

manner prejudicial to the security of the State. The detention is for a period of two years. The detention has been approved by the Government

under provisions of J & K Public Safety Act. This detention and the order thereto is under challenge in this petition.

Detenu Gh. Qadir Raina is alleged to be a political activist belonging to a party opposing the ruling party of the State. He is detained in order to

settle scores with him for his act of having canvassed and worked for a candidate who contested against a candidate of the ruling party. The detenu

was picked up during night from his home and kept in JIC, Khanabal, Anantnag and later moved to Police Station Kokernag before he was

lodged in Central Jail Kuthwa. Here after about 15 days he was handed over photostate copies of order of detention and grounds thereof

(Annexures PA and PB). The grounds of detention in fact are reproduction of police dossier. The detention suffers from non-application of mind.

Detenu being an illitrate is unable to read Urdu and English language and was not explained the detention order in Kashmiri language which he

understood. He was not even given copies of the detention order at the time when detenu was taken in custody though he was already in punitive

detention under a substantive offence in a case registered at P/s Dooru. He had not even applied for bail in the regular case as such the detention

order cannot be sustained on this count too.

Respondent through detaining authority District Magistrate, Anantnag (respondent No. 2} has filed counter-affidavit. The above pleaded

allegations to assail the detention order, have been countered by submitting that the order of detention was passed on consideration of the matter,

after the report/dossier received from SSP, Anantnag was taken note of and assessed, besides the entire situation was taken stock of. The order

has been passed by the detaining authority (respondent No. 2) on application of mind. The detention order as also the grounds with material

including dossier received from SSP, Anantnag and all other relevant material were supplied to the detenu and he was appraised of his right to

make a representation against the detention, if he so desired. The material relating to the substantive offences as also other material connected with

his detention was explained to detenu in his mother tongue which he understood and a receipt therefore was obtained from him. The detaining

authority was aware of detenu's punitive custody and having regard to the circumstances that the accused in punitive detention are getting bail and

that ordinary law was hardly sufficient to deter him from indulging in activities prejudicial to the security of the State the preventive order in question

was passed.

The preventive detention record produced by the GA is available with the file.

Heard counsel for the parties. Record pursued. Matter considered.

The contention of the petitioner that there has been non-application of mind by the detaining authority is not born on record. The detaining

authority had the whole material including the record pertaining to substantive offence(s) as also the report/dossier of SSP, and other material with

him. He has been as well aware of situation, basic facts antecedents and nature of allegations levelled against the detenu. The overwhelming

material and record negates the espoused plank of political rivalry as a reason for detention. The detenu has been involved in number of incidents

for which various cases have been registered within jurisdiction of different Police Stations of District, Anantnag connected with firing, planting and

fabrication of explosive devices and recovery of arms and ammunition from various places together with the past antecedent activities of the

detenu. In the facts and circumstances of this case it cannot be said that the detention order on this count is vitiated.

In P.L. Lakhanpal Vs. Union of India (UOI) and Others, a five member constitutional Bench of the Court on the question of satisfaction of

empowered authority in the background of Defence of India Rules, 1962 observed :

...So long as that decision was arrived at on materials, since this Court does not sit in appeal against such a decision, it would not ordinarily

examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the Court had examined them it

would have come to a different conclusion. It is, therefore, not possible to agree with the contention that this is a case of a mala fide exercise of

power or a case of non-application of mind by the authority concerned.

The contention that the detention order is vitiated in so far as the detenu was in punitive detention and had not applied for bail cannot be also

countenanced in the over all fact situation and the circumstances of the case. In the grounds as also in the counter filed by the detaining authority it

has been specifically mentioned that the detaining authority is aware of detenu's detention under substantive offences under different cases

registered at different police stations but the detaining authority has specifically averred that as the law Courts as per provisions of law have been

regularly admitting the accused to bail, the detaining authority having regard to the detenu's antecedent activities thought and perceived and the

ordinary law was not sufficient to deter him from acting in activities prejudicial to the security of the State. In view of this uncontroverted averment

and stand of detaining authority it is obvious that the detaining authority has made out a case of compelling reasons to order preventive detention of

the detenu, notwithstanding his punitive detention for substantive offences. The report and the grounds sufficiently makes it clear that the detaining

authority's perception and thought of detaining the detenu lest he may not be released on bail is not wholly without basis. The detenu's past

activities and nature thereof injuxtaposition with his thought and apprehension of detenu's likelihood of getting bail also furnished basis for passing

detention order. In the facts and circumstances of the case detention authority has applied its mind for passing detention order so as to deter and

prevent the detenu from indulging in activities prejudicial to the security of the State. There is no bar to hall a person in preventive detention, even if

he is in custody/punitive detention.

In Dharmendra Suganchand Chelawat and another Vs. Union of India and others, , the Apex Court observed at page 1237 of Cri LJ :-

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.

In Poonam Lata Vs. M.L. Wadhawan and Another, the Supreme Court observed at page 1929 of Cri LJ :

It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of

preventive detention. What is necessary in a case of that type is to satisfy the Court when detention is challenged on that ground that the detaining

authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became

necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner

was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any force in

this contention of Mr. Garg. Since bath the contentions canvassed are rejected, the writ petition is dismissed.

The contention of learned counsel for the petitioner based on aforementioned ground cannot be countenanced on merits and is rejected. The

petitioner's-counsel further submits that as the detenu is an illiterate person and he has riot been explained the order and grounds and even copies

thereof have not been supplied, therefore he cannot be legally said to have been communicated the grounds and thereby he is prejudicially effected

in making a representation against detention.

Counsel for State submits that the detenu has been supplied the grounds with whole material on which detention is based. The detenu has

acknowledged receipt of grounds as also whole material including the dossier, the basis of the grounds and order. The detention record has been

translated and explained to detenu in Kashmiri language. The officer executed the order as also handed over the grounds with material to detenu.

He has discharged his mandatory duty ""by explaining in mother tongue to the detenu the entire scenioro which lead to his detention"".

From perusal of counter-affidavit filed by the detaining authority what the GA submits as above is fully made out. All this has not been

controverted by the detenu. No rejoinder thereto has been filed. The detention record produced shows that while executing the detention order,

the same with accompanying material was explained to detenu in Kashmiri language which detenu understood. He was handed over entire

detention papers. He has also executed receipt under his signatures which is attested by Superintendent of CentralJail, Kathua. The police

report/dossier is accompanying the order. In such circumstances the contention of the learned counsel that the dictum of Smt. Raziya Umar Bakshi

Vs. Union of India and Others, applies to the case cannot be upheld. The record bears endorsement of supply of material a documentation of the

grounds having been explained to the detenu in a language which he understood. The affidavit of the detaining authority and the detention record of

the Govt. fully explains the position that besides oral explanation of the order with grounds he was supplied copies in a concise form of the whole

detention record. Obviously the contention of the learned counsel on this score too have to be rejected.

In result for the aforesaid reasons the order of detention in my view is not found vitiated and cannot be ruled as invalid. The detention is in

order. With the result that the Habeas Corpus petition is disrnissed.