Mohmad Amin Khan vs State and Another

By medium of this petition for a writ of Habeas Corpus, the detention order in respect of Shabir Ahmad Khan, passed by the District Magistrate

Kathua on 17.1.1991, in terms of section 8 of the J&K Public Safety Act, hereinafter referred to as Act, has been challenged inter alia on the

following grounds:

(1) That the detention order has been passed in respect of a person who was already in custody in a substantative offence, in which he bad not

moved any application for bail. No compelling reasons are shown in the grounds of detention of there being any likelihood of him getting the bail

for passing an order under the provisions of the Act. This allegedly shows the nonapplication of mind by the detaining authority who has passed the

order mechanically.

(2) That except the grounds of detention, no material which was considered by the detaining authority, for passing the order, has been supplied to

him to enable him to make a representation against the order of his detention.

(3) That the subjective satisfaction by the detaining authority and the necessity for detaining the detenue has not been recorded in the grounds of

detention.

(4) That the detaining authority has at the very initial stage fixed the maximum period of detention as provided under the Act, even before referring

of the matter to the Advisory Board.

(5) That the order of detention was passed by the District Magistrate Kathua who has no jurisdiction over the detenue in so far as the activities

alleged by committed by him are concerned as they pertain to areas which fall beyond his jurisdiction.

In the counter filed by the District Magistrate Kathua it is stated that there was likelihood of the detenue getting bail in the case in which he was

arrested.

In the counter it has not been controverted that all the material considered by the detaining authority was furnished to the detenue. As a matter of

fact nothing has been stated in the counter in respect of the material supplied to the detenue except the grounds of detention.

As regards recording of subjective satisfaction of the necessity to detain the detenue, it is stated that the same has been done in the order of

detention.

In respect of fixing of the maximum period of detention at the initial stage, it is stated that this matter already stands referred to a forger bench.

In the counter nothing has been stated about the jurisdiction or otherwise of the D.M. Kathua to pass the order of detention, when the activities

allegedly committed by the detenue pertain to areas beyond his territory.

I have heard the learned counsel for the parties and have also gone through the record

Firstly, I will deal with the argument as to what were the compelling reasons for passing of the impugned order when the detenue was already in

custody in a substantive offence of a heinous nature.

The detenue was arrested by police Kathua at Lakhanpur, Jammu, on 30.11.1990 in FIR No. 433/90 police station Kathua for the offence u/s

3/4 TADA Act, U/s 5 ESA and U/s 419/420 of the RFC. He continued to be in custody in the said FIR till the impugned order was passed on

17.1.1991.

So far as the offence U/s 3/4 TADA Act is concerned it is punishable with imprisonment for a term which shall not be less than five years but

which may extend to imprisonment for life. The offence is of such a nature where bail is not ordinarily granted. It is a nonbailabls offence of such a

nature where the accused cannot claim bail as a matter of right. Moreover before granting bail in such offences, the prosecutor is given the

opportunity of opposing the bail.

It has been emphatically stated in the petition that the detenue had not applied for bail when the order impugned was passed, though till then

more than 11/2 months had elapsed.

In the grounds of detention, the detaining authority has in a slipshod manner and without showing the compelling reasons for his detention order

the Act, mentioned as under:

on 3.11.1990, you were apprehended by police during checking at Lakhanpur at about 1.30 AM in case FIR No. 433/90, U/s 419/420 RPC,

3/4 TADA, 5 ELA of police station Katdua. You are still in police custody. In case of your release on bail, you will prove a security hazard.

Now it is to be seen as to whether the above mentioned contention of the detaining authority is sufficient to pass the detention order without

showing any compelling reasons for the same. It only shows his awareness about the arrest of the detenue in the offences mentioned therein.

Ordinarily when a person is in detention in a substantative offence, he need rot be detained under the provisions of the Act unless there are

compelling reasons to do so. It is for the detaining authority to show the compelling reasons in the grounds of detention for detaining I he person in

preventive detention when he is already in detention in a substantative offence of a serious nature.

In AIR 1990 SC 1196 it has been observed as under:

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 it is necessary that the grounds of detention must show that

1) the detaining authority was aware of the fact that the detenue is already in detention and (2) there were compelling reasons justifying such

detention despite the fact that the detenue is already in detention. The expression 'compelling reasons' in the contest 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, 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."" The detaining authority in the present case has failed on both counts in view of the above mentioned

authority. He has not given any compelling reasons in the grounds of detention for detaining the detenue under the provisions of the Act when he

was already in custody in a heinous offence, wherein he was not likely to be released. Similarly he has not demonstrated any tangible reasons in the

grounds of detention that in case the detenue was released he was likely to indulge in prejudicial activities and in that view it was necessary to

detain him in order to prevent him from engaging in such activities.

In these circumstances of the case, in my opinion, the detention order has been passed in a mechanical manner and without application of mind

to the facts of the case.

The second argument of the learned counsel for the petitioner was that no material was supplied to the detenue which was considered by the

detaining authority to pass the order of detention for enabling him to make an effective representation against that order.

In order to appreciate his argument on this point, I have gone through the order of detention as also the record produced by the Govt.

Advocate. In the endorsement of the detention order the executing officer of the warrant of detention was directed by the detaining authority to

furnish the copy of 'dossier' to the detenue, besides the grounds of detention. From the receipt obtained from the detenue, which is on the record

of the detaining authority, it appears that only grounds of detention were supplied to him. The 'dossier' has not been supplied to him. Similarly the

copy of FIR mentioned in the grounds of detention has not been supplied to him. The allegations in the FIR have also been considered by the

detaining authority for passing of the detention order. He has mentioned in the grounds of detention that in case he was released in that case, he will

prove a security hazard.

The learned Government Advocate submitted in his arguments on this point that the 'Dossier' was not required to be furnished to the detenue

as according to him the facts given therein have been all reproduced in the grounds of detention. As regards nonsupply of the copy of FIR, he

submitted that it too was not necessary to be furnished, because according to him its mention was made in the grounds of detention only to show

the awareness of the detaining authority about his arrest at the time of the passing of the detention order.

In the record of the District Magistrate, I have gone through the ""Dossier' which has been considered by him for his subjective satisfaction to

detain the detenue under the provisions of the Act. The said 'dossier' is nothing but sort of a report from the SSP (CID) containing the facts as

mentioned in the grounds of detention. What is the material on which the said report is based is not on the file, nor any mention of such material is

made anywhere. Without the material on which the said report should be based, it is nothing but a concocted bull and cock story. After all the

report of the SSP must. be based on some material. He is not a witness to all such allegations. What is material, it has not been mentioned

anywhere.

The important question which falls for consideration h whether on the said report which is short of any material, the detenue could make an

effective representation against the order of detention. In my opinion he could not. In the said report only allegations have been made against the

deteaue that he indulged in such activities. What is the material on which such allegations have been made, is nonexistent. It is not on the record

and nor its mention made anywhere. After all an allegation cannot be made in the air. It should have some basis. There should be some material on

which it is based. Merely making an allegation against somebody that he has committed a murder is not sufficient to fasten him with the guilt, unless

it is based on some sound, cogent material. Had there been any such material in existence, it should have been on the record of the detaining

authority. Without existence of that material, their report of the SSP will be considered by a prudent man to be nothing but a conjecture, drawn

from mere surmises. If a person is to be detained on such surmises merely on the wild allegations, without any cogent material, then God only can

save the rule of law, on which our democratic set up is based. It will throw to winds the constitutional guarantees enshrined in the constitution.

Nobody's liberty is safe in such circumstances.

In these circumstances of the case I was wonder struck as to how the order of detention was passed by the District Magistrate without any

material before him. Except the report of the SSP there was no material before him to pass the order of detention. He should have asked the SSP

as to what was the material on which the said report was based: Without having any material before him, he has passed the order of detention,

taking away the liberty of a citizen of India which was guaranteed to him by the constitution. It is therefore, manifest that the said order has been

passed passed on nonexistent material which is a sheer abuse of the powers given to the detaining authority under the provisions of the Act.

Even the copy of the FIR has not been furnished to the detenue though it has been referred to and relied upon in the grounds of detention and it

was, therefore necessary to be furnished to him to enable him to make an effective representation against the order of his detention.

I have given my due consideration to the facts of the case in respect of nonsupply of material to the detenue visà vis its existence or otherwise

and in my opinion, the order has been passed on nonexistent material and that being so, no material was supplied to the detenue depriving him of

his constitutional right to make an effective representation against his detention.

This inherent defect in the order of detention knocks out its very bottom and goes to its root, vitiating its very validity in the eye of law. Passing

of a detention order without any cogent material before the detaining authority takes away his very Jurisdiction to pass such an order. If the

detaining authority has no material before him, what should he furnish to the detenue to enable him to make a re presentation against such illegal

order which is void abinitio.

The third argument of the learned counsel for the petitioner was that the detaining authority has at the very initial stage fixed the maximum

period of detention of two years as provided under the Act when the matter was yet to be confirmed by the Govt. and had not even been referred

to the Advisory authority, which according to him is illegal and against the mandate of law.

The legal point has already been decided by me in H. C. Petition No. 504 of 1990 decided on 14.2.1991, holding that the language of Act

22(4) of the constitution of India being mandatory in nature, the fixation of maximum period of detention by the detaining authority at the initial

stage was violative of the constitution and hence bad in law.

In this view of the matter also the order impugned is vitiated as the detaining authority has at the very initial stage fixed two years of detention

which is the maximum provided under the Act.

Though the state has gone in appeal against the above mentioned decision, as stated in the counter, but the point decided by me has not as yet

been reversed. I still hold that the detaining authority cannot at the initial stage fix the maximum period of detention and it vitiated the detention

order.

The order of detention has also been challenged on the ground that it has been passed by a District Magistrate within whose jurisdiction the

alleged activities have not been committed by him.

In the grounds of detention all the activities allegedly committed, by the detenue were in Kashmir valley. The detenue hails from the Badgam

District of Kashmir. He was going outside the state when during checking at Lakhanpur check post, he was arrested by Kathua police in FIR No.

2433 of 1990 P/S Kathua, on 30.11.1990 while he was still in custody in the said case, the District Magistrate Kathua passed the impugned order

on 17.1.1991, under the provisions o f the Act. detaining him for a period of two years there under for such activities which were allegedly

committed by him in Kashmir and outside his territorial jurisdiction. The question is whether he had the jurisdiction to pass such an order about the

activities allegedly committed beyond his jurisdiction. Under section 8 of the Act. the authorities are competent to pass an order thereunder, i.e. (1)

the Govt. (2) the Divisional Commissioners and (3) the District Magistrate obviously the state Govt. has the power to pass an order about any

.state subject, under the Act, wherever he may commit the activities or to which ever place he may belong to. In jurisdiction is throughout the

State. The Divisional Commissioners and the District Magistrates have limited jurisdiction as given to them for the specified areas. The Divisional

Commissioner has the jurisdiction over a division and the District Magistrate over a district. They have cot as vast a jurisdiction as the state Govt.

has. Similarly the District Magistrate has limited jurisdiction as compared to the Divisional Commissioner.

In my opinion the Divisional Commissioner as defined in the Act means the Divisional Commissioner of the concerned Division and the District

Magistrate means the District Magistrate of the particular District. The District Magistrate of Srinagar cannot pass on order in respect of person

who has committed the prejudicial activities in Kathua district. Similarly the District Magistrate Kathua cannot pass an order in respect of a person

from Srinagar who has indulged in prejudicial activities in that district. After all this is a question of inherent jurisdiction which should not overlap.

Though the learned counsel for the parties, havenot assisted me in deciding this question but still I am of the opinion that the Divisional

Commissioners and the District Magistrates as defined in the Act mean the Divisional Commissioner and the District Magistrate of the areas over

which they have a jurisdiction as such authorities. In that view of the matter the District Magistrate Kathua has no jurisdiction to pass an order

under the Act in respect of a person who has indulged in prejudicial activities byoned his jurisdiction, somewhere in Kashmir. It is only in case

where a person has committed the prejudicial activities in two neighboring districts, that one of such District Magistrates could pass an order. In

this view of the matter I am of the opinion that the District Magistrate Kathua has passed the impugned order without any jurisdiction.

Keeping all these facts and circumstances of the case in view, I am of the opinion that the order impugned is unconstitutional and illegal and

therefore not sustainable in the eye of law. The result is that the petition is allowed and the detention order impugned in this petition hereby

quashed. The detenue shall be set at liberty forthwith. The superintendent Central Jail Jammu, or wherever the detenue is lodged at present, shall

release the detenue at once.

Let the file be consigned to records. The record produced by Mr. Pant Govt. Advocate shall be returned to him against a proper receipt.