Mudasir Ahmad Sheikh @APPELLANT@Hash State Of Jammu & Kashmir And Anr

1) Petitioner, by the medium of instant petition, seeks quashment of detention order No.89/DMB/PSA/2018 dated 10.11.2018, 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, Mudasir Ahmad Sheikh S/o Abdul Rashid Sheikh R/o Kunzer 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 main ground is that detenue was arrested in connection with case FIR No.78/2018, for commission of offence under Sections 13,18-B, 39 ULA(P) & 121- A RPC registered in Police Station Kunzar 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. Learned counsel also referred to note 3 of letter addressed to detenue in terms of which SSP, Baramulla had been asked to deliver the copy of the grounds of detention and other material to the detenue and also to imtimate him for filing representation. There has been no response from the SSP or any of his representatives according to him, that obligation caste in terms of Rule 3 wasfulfilled. The affidavit of the person who read over contents of the grounds of detention has not been filed which thus renders the order impugned bad. The other grounds referred in the petition have been also pressed into service.

3) The respondents in their counter affidavit have disputed the averments made in the petition. They have stated that the provisions of the Public Safety Act have been followed and the detenue has been detained only after following due procedure prescribed in terms of Public Safety Act.It is further stated that the activities of the detenue have been reflected in the grounds of detention and the same were heighly prejudicial to the preservation of public order and his remaining at large would have caused more damage to the public property and public order.There has been proper application of mind for detaining the detenue. The detenue has been provided all the material which was considered by the detaining authority while passing the impugned order, is also being submitted.

4) Heard, perused the records and considered.

5) Counter has been filed by respondent No. 2 only. There has been no response on behalf of respondent No. 3 SSP, Baramulla about the follow up, if any, made in terms of note 3 of the above referred communication as was canvassed by learned counsel for the petitioner. The affidavit of person who provided the material and the copy of grounds of detention to the detenue has not been filed to substantiate the compliance of Section 13 of the Public Safety Act and Article 22(5) of the Constitution of India has not been made. The single infraction would render the order bad. Furthermore, the detenue is stated to be in judicial custody in an offence for which there are bleak chances of grant of bail. The District Magistrate ( detaining authority) has not put forth any justification as to how the detenue can be said to be likely released on bail for such circumstances. This lends support to the contention raised on behalf of the detenu that preventive detention ought not to have been resorted to as the normal law was sufficient to deter the detenu from indulging in any activities deemed by the respondents prejudicial to the 'security of the State'.

6) It is trite that preventive orders can be passed even when a person is in police or judicial custody or involved in a criminal case but for so doing, compelling reasons are to be recorded. No such reason has been recorded. In the grounds it is being simply stated that bail application has been filed by the detenue and he may be released. It is not put forth that on the basis of material available the detaining authority was satisfied that taking into account 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 indulging in such activities .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."

In T.P. Moideen Koya v. Govt. of Kerala 2004 (8) 106 the Apex Court held:

" that in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenu was likely to be released on bail."

8) Furthermore, the detention has to be treated bad also due to omission to explain him grounds of detention in the language which he knows. Judgment of Apex Court in Surjeet Singh Vs. Union of India AIR 1981 SC 1153 is relied in this regard. The Respondent No. 2 has admitted the detenu has read upto 10th class only. Counter affidavit does not refute the plea raised in petition that the detenu could not understand English language in which grounds were supplied.

9) 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 ground alone, therefore, other grounds projected in the petition are not required to be dealt with.

10) For the reasons stated and the law as quoted above, petition is allowed. Order of detention bearing No. 89/DMB/PSA/2018 dated 10.11.2018 is quashed. The detenue be released from custody forthwith provided he is not required in any other case.

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