Mashooq Ahmad Bhat @APPELLANT@Hash State Of Jammu & Kashmir And Others

In this Habeas Corpus petition, the petitioner challenges the order of detention dated 20.09.2017, 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 maintenance of peace and public order. Â

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

a) that the material on the basis of which the order of detention was passed had not been supplied to the petitioner.Â

b) that the grounds of detention were not read-over and explained in the language, which the petitioner understands, i.e., Urdu/ Kashmiri.Â

c) that the order of detention suffers from non-application of mind, inasmuch as, on the date of issuance of the detention order, the petitioner was

already arrested in FIR No. 259/2017 u/s 147, 148, 149 336, 307 RPC, registered in Police Station, Sopore and that no application had been filed by the

petitioner before the Court of competent jurisdiction in the said case and that since the petitioner was already under arrest, therefore, there was no

likelihood that the petitioner would indulge in activities alleged by the respondents.Â

In the reply affidavit filed by the State, the aforementioned averment has not been specifically answered or denied. All that was stated is that the

petitioner was involved in FIR No. 259/2017 u/s 147, 148, 149 336, 307 RPC, registered in Police Station, Sopore 04. Heard learned counsel for the

parties and have perused the record.Â

The Apex court in Binod Singh vs. District MagistrateDhanbad, (1986) 4 SCC 416 held 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, it can be seen that since the averment made by the petitioner

that he has already under arrest in FIR No. 259/2017 u/s 147, 148, 149 336, 307 RPC, registered in Police Station, Sopore remained un-rebutted,

therefore, the same is presumed to have been admitted by the respondents. If that be so, then the order impugned can be said to be suffering from

non-application of mind, inasmuch as, the detaining authority was not at all aware about the petitioner’s arrest and therefore, there would be no

occasion for him to claim that there was likelihood of his indulging in activities, which would disturb peace and public order.Â

Keeping in view the principles of law aforementioned, the order of detention can clearly be stated to be suffering from nonapplication of mind on

the part of the District Magistrate. The order impugned dated 20.09.2017, therefore, is legally untenable and is, accordingly, quashed. Needless to

say that the official respondents would be at liberty to proceed afresh in case the circumstances are such as satisfy the District Magistrate to invoke

the provisions of the Jammu and Kashmir Public Safety Act, 1978, which should, however, be done strictly in accordance with the provisions of the

said Act, after due application of mind and ensuring supply and communication of all the relevant material, which forms the basis of the order of

detention.Â

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