Manzoor Ahmad Dar vs State & Ors.

Heard. Considered.

Detenue namely Manzoor Ahmad Dar S/o Mohammad Ramzan Dar R/o Saloosa Kreeri, Tehsil Kreeri District Baramulla, has been arrested on

15.02.2008 by the Police in connection with a criminal case registered against him under FIR No.26/2008 in Police Station, Baramulla, for

commission of offences punishable under section 7/25 Arms Act. Thereafter he was implicated in three criminal cases under FIR No. 119/2007

for commission of offence punishable under section 302 RPC and 7/27 Arms Act; FIR No. 05/2008 and 02/2008 for commission of offences

punishable U/S 121 RPC, 19 U.L.A(P)Act, and 2/3 E&IMCO Act registered in P/S Kreeri. While in custody detention order impugned bearing

no. DET/PS A/08/522 of 2008 dated 22.04.2008 has been passed by District Magistrate, Baramulla whereunder detenue has been detained

under the provisions of J&K Public Safety Act 1978. Dissatisfied with the order of detention, mother of the detenue has filed this petition seeking

quashment of the same.

Appearing counsel for petitioner firstly projected that the detenue who was in custody in connection with case under FIR No. 26/2008 U/S

7/25 Arms Act, FIR No. 119/2007 U/S 302 RPC, 7/27, FIR No.05/2008 U/S 7/25 Arms Act and FIR No.02/2008 U/S 121 RPC 7/25 A.

Act, 19 U.L.A Act and 2/3 E&IMCO Act had not applied for bail. Neither bail had been granted, nor there was likelihood of grant of bail as the

offences under section 121 RPC and 19ULA Act, and 7/27 Arms Act carries the punishment of death or life imprisonment, so the likelihood of

obtaining bail at the stage of passing of detention order was unimaginable.

The object of passing the order of detention is to detain a person whose activities when at large are considered to be prejudicial to the

integrity/security of the State. To achieve the object liberty of a person is curtailed. When a person is already in custody whether the order of

detention is justified or not depends upon the facts and circumstances of each case. The passing of detention order against a person who is already

in custody in connection with substantive offences is permissible but the detaining authority has to record the compelling reasons. Compelling

reasons are to be gathered from the attending circumstances. Detaining authority has not derived any satisfaction when the offences allegedly

committed carries punishment of death or life imprisonment, grant of bail is not warranted under Section 497 Cr. PC except when there are

reasonable grounds to believe that the person is not involved. In the case in hand, among other offences, one offence punishable under section 302

RPC, carries the punishment of death or imprisonment for life. In view of such circumstances, there was no requirement of passing the detention

order.

It is quite relevant to quote Para 5 of the judgment delivered by Supreme Court in Surya Prakash Sharma vs. State of UP reported in 1994,

SCC (Cr.) 1691:

The question as to whether and in what circumstances an order for preventing 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, Burdan,"" To eschew prolixity we refrain from dealing all those cases except that the Dharmandra Suganchand Chelwat vs. Union of

India wherein three Judge, Bench, after considering all the earlier relevant directions 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 detenue was already in detention and

ii) there was 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 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) that 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.

Next it has been contended that grounds of detention have not been read over to the detenue in the language understood by him which in turn

has disabled him to make an effective and purposeful representation. From the perusal of the record the contention of the learned counsel is found

correct, though shown to have been read over to the detenue, but no affidavit to that effect by the person has been filed. It is apt to quote the

observation as made by Apex Court in the judgment reported in 1999 (2) SCC 413:

The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in

support thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to the

detenue. Failure to do so would amount to denial of the rights of being communicated the grounds and of being afforded the opportunity of making

a representation against the order."" The grounds projected for above stated reasons prevail, resultantly, detention order No. DET/PSA/08/522 of

2008 dated 22.04.2008 is quashed. Regarding custody/lodgment in connection with the above referred cases to follow as per the direction of the

concerned competent Committal/Trial Court.

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

The petition accordingly disposed of.