Mohammad Asim Malik @APPELLANT@Hash State Of Jammu & Kashmir And Anr

1) By virtue of order bearing No.43/DMA/PSA/DET/2018 dated 24.07.2018, passed by respondent No.2-District Magistrate, Anantnag, in exercise of powers under Section 8 of the J&K Public Safety Act, 1978, Mohammad Asim Malik, has been taken into preventive custody and lodged in District Jail, Kathua.

2) The petitioner's case, as set out in the petition, is that the detenue was arrested on 28.06.2018 and was booked in case FIR No.78/2018 P/S Bijbehara under Section 147, 148, 149, 427, 307, 331, 336 RPC and there after detention order impugned was slapped upon him. The allegations/grounds of detention are stated to be vague and mere assertions. The detenue had applied for bail which was granted on 23.07.2018. The bail application was contested by the respondents but the said fact has not been made mention of in the grounds of detention. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the maintenance of public order. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him. The grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The learned counsel for the respondents has made available detention records to lend support to the case set up in the counter affidavit.

4) Heard learned counsel for the parties and also perused the record.

5) The main plank of the argument of the learned counsel for the petitioner contended that the detenue had been admitted to bail in FIR No.78/2018 which fact has not been made mention of in the grounds of detention though reference to said FIR has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "Anant Sakharam Raut v. State of Maharashtra and another" reported in AIR 1987 SC 137:-

"We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith......"

6) It is further projected that when the detenue was already in custody, there was no need to direct his preventive detention. It has been stated in the counter affidavit that the detenue is involved in FIR No.78/2018 registered in Police Station, Bijbehara and his arrest in the said FIR, at the time of passing of the order of detention, has not been disputed.

7) 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."

8) Impugned order of detention suggests that to prevent the detenue from acting in any manner prejudicial to the "security of the State" detention has been ordered whereas in the grounds of detention, it is recorded that the activities of the detenue are highly prejudicial to the maintenance of public order. The District Magistrate has not been himself certain as to whether activities of the detenue are prejudicial to the "maintenance of public order" or "security of the State". It shall be relevant to quote Para 9 of the judgment "G. M. Shah Vs. State of J&K", reported in (1980) 1 SCC 132.:

"As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenue has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors(3).

9) The learned counsel for the petitioner has also argued that the Officer, who handed over the detenue to the jail authorities of District Jail, Kathua, along with relevant documents, should have filed an affidavit in the matter, which has not been done.

10) From a bare glimpse of the execution report, annexed with the detention records, what comes to the fore is that the detention warrant has been executed on 28.07.2018. It also reveals that the contents of the detention warrant and grounds of detention were read over and explained to the detenue in Urdu and Kashmiri languages, which languages he understood fully well and, in token thereof, his signature was attained on the execution report itself. However, to clear all doubts, it was incumbent on the part of the officer, namely, SI Manzoor Ahmad Mir, who did the exercise of handing over the documents and conveying the contents thereof to the detenue to file an affidavit in order to attach a semblance of fairness to his statement. In this regard, support can be had from the law laid down by the Hon'ble Apex Court in the case of "State Legal Aid Committee, J&K v. State ofJ&K & Ors." (AIR 2005 SC 1270), wherein it has been held as under:

"Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/ communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of section 13 of the Act."

11) In the backdrop of what has been stated above, the petition is allowed, a consequence of which, the order of detention bearing No.43/DMA/PSA/DET/ 2018 dated 24.07.2018, passed by respondent No.2, quashed. Detenue is directed to be released from the preventive custody forthwith, unless, of course, not required in any other case.

12) The record, as produced, be returned to the learned counsel for the respondents.