Gowhar Maqbool Rather vs State Of Jammu & Kashmir And Ors

1) Petitioner, by the medium of instant petition, seeks quashment of detention order No.71/DMB/PSA/2018 dated 17.09.2018, issued by District Magistrate, Baramulla, in exercise of powers conferred by Clause (a) of Section 8 of the J&K Public Safety Act. In terms of the said order, Gowhar Maqbool Rather son of Mohammad Maqbool Rather resident of Hardshiva Sopore, District Baramulla (hereinafter referred to as the detenue) has been directed to be taken into preventive custody so as to prevent him from indulging in the activities which are prejudicial to the security of the State.

2) Learned counsel for the petitioner highlighted various grounds while seeking quashment of impugned order but the star ground is that detenue was arrested in connection with case FIR No.244/2018 P/S Sopore, for commission of offence under Sections 16, 39 and 18-B ULA Act and had not applied for bail, when it was so, how could he be taken into preventive custody. The detaining authority has not given the compelling reasons for detaining the detenue under preventive laws.

From the perusal of detention records, it is found though, in the grounds of detention, there is mention of the fact that the detenue had been arrested in connected with FIR No.244/2018 but it is not clear as to whether the detaining authority was aware of the fact that the detenue continued to be in custody. Furthermore, if it is presumed that the detaining authority was aware that the detenue was in custody in respect of said FIR, yet the compelling reasons have not been indicated in the grounds of detention. In other words, the grounds of detention nowhere make a mention or indicate satisfaction that the detenue was likely to be released from custody in near future.

It is trite that preventive orders can be passed even when a person is in police custody or involved in a criminal case but for so doing, compelling reasons are to be recorded. No such reason has been recorded. When it is so, order of detention becomes unsustainable. It shall be quite apposite to quote Para 5, 6 and 7 of the judgment of the Hon'ble Apex Court in "Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691,:

"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 state first came up for consideration before a Constitution Bench in Rameshwar Shaw vs District Magistrate Burdwan to eschew prolixity we refrain from detailing all those cases accept that of Dharmendra Sugan Chand 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 detection 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 detailing authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression compelling reasons in the context of making an order for detention of a person already in 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 detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, 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."

When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority's awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in the grounds of detention that if the aforesaid Surya

Prakash Sharma is released on bail "he may again indulge in serious offences causing threat to public order". (emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified.

7.On the conclusions as above we quash the order of detention."

3) The arrest of the detention in connection with aforesaid criminal cases, at the time of passing of impugned order of detention, has not been disputed by the respondents in the counter affidavit. Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, question arises for consideration whether an order of detention could be passed on the face of such an eventuality? The answer to this question is emphatically "No", taking into consideration the law laid down by the Hon'ble Apex Court in "Sama Aruna v. State of Telangana & Anr" (AIR 2017 SC 2662). Para 24 of the said judgment is apposite to be quoted herein below:

"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:

"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

4) The same view has been repeated and reiterated by the Hon'ble Supreme Court in the judgment delivered in the case of "V. Shantha v. State of Telangana & Others" (AIR 2017 SC 2625). Para 13 of the said judgment is relevant to be quoted as under:

"The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well-being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenue from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order because of inadequately yield from the chilli seed sol by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention. The grounds of detention are ex-facie extraneous to the Act."

5) Testing the instant case on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the provisions of the Public Safety Act when he was already in the custody of the police authorities in the cases, the details whereof have been given in the grounds of detention. His custody in police for the offences referred in the grounds of detention, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that the detenue applies for bail, he may succeed in seeking his release but this apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to knock at the doors of higher forum. This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail. It cuts the very root of the State act. The State could have taken recourse to the ordinary law of the land.

6) In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain on the above referred grounds alone, therefore, other grounds projected in the petition are not required to be dealt with.

7) For the stated reasons and the law as quoted above, petition is allowed. Order of detention bearing No. 71/DMB/PSA/2018 dated 17.09.2018 is quashed. Further custody of the detenue shall be governed in accordance with the orders of the court of competent jurisdiction in connection with criminal case registered against him.

8) Detention record as produced be returned to the learned counsel for the respondents.