Mushtaq Ahmed Mir vs State

Subject Mushtaq Ahmed Mir Resident of Draway Nimatpora, Larnoo Anantnag was taken in custody on 21.3.2000 in FIR No, 24/2000 u/s

7/25 I.A. Act registered at P/S Dooru. Subsequently under order No. F142/222935/DMA dated: 03.04.2000 of District Magistrate, Anantnag

(Respondent No. 2). he has been detained U/s 8 of J&K P.S. Act, 1978 allegedly to prevent him from indulging in activities prejudicial to the

security of the State. This detention order is under challenge in this petition.

Counter has been filed on behalf of respondents by the detaining authority (respondent No. 2)

Ld. counsel for the petitioner is questioning the legality of the order on following three grounds :

First that the detenu is illiterate and the order and grounds of detention have not been read over and explained to the detenu, thereby detenu is

prejudiced to make representation against the order of detention to the govt;

Second that the grounds are based on the report/dossier of the concerned Police Station forwarded to the detaining authority by Sr.

Superintendent of Police, Anantnag. The detaining authority has not applied mind to this report. Instead the contents of the Police dossier have

been reproduced in the detention order. The detention order suffers from nonapplication of mind and third that the detenu was already in punitive

custody and no bail application had been moved on behalf of the detenu, therefore, there was no reasons for the detaining authority to clamp the

detention order.

The counsel for the respondents, Mr. R.Q. Gadda counters the above submissions. The counsel states that the order and grounds have been not

only served on the detenu but the same have read over the explained to him in Kashmiri/Urdu language which he fully understood. Besides he was

informed of his right of making representation to the govt against the order. This was done when the detenu was taken in preventive custody and

delivered to jail authorities pursuant to execution of the order. In reply to second ground of challenge, the GA submits that the detaining authority

has on application of mind passed the detention order. The question of routine restatement or reproduction of the contents of the Police dossier in

grounds is nothing but ipsidixit of the petitioner. No less a person than the detaining authority has in counter stated that the detaining authority has

on consideration and after going through the record on application of mind and on subjective satisfaction passed the detention order in question.

The ground of challenge on this count is devoid of force and the grounds are based on facts and reality on ground level.

Lastly it is submitted that no doubt the subject was in punitive detention when the detention order in question was passed, but the reason for

such action was the compelling reasons. In the context of history and antecedent activities of the subject and the common experience that the

accused get bail from courts even in heinous crimes, it was felt necessary to prevent the subject from indulgence in subversive activities prejudicial

to the security of the State. What the detenu challenges is not that the order with grounds was not supplied to him but what he states is that being

illiterate, order and grounds were not read over and explained to him.

In reply the detaining authority on the basis of record has averred that when the detenu was taken in detention on 11.04.2000 at P/S Doom,

the contents of the grounds of detention were read and explained to detenu in Kashmiri/Urdu language which he fully understands. The detenu and

the detention paper were handed over to Jail authorities on 12.04.2000, i.e. Kathua Jail authorities. Signatures and thumb impression to this effect

has been obtained from him"". From counter it is manifest that the grounds were given to detenu and explained to him, contents whereof he

understood fully. He was even informed of his right to make representation to the Government against, detention order. These grounds were

readover to detenu by Shri. Assadullah ASI NGO 4273 P/S Dooru, Anantnag. The detenu fully understood the contents of the order and grounds

after same were read over and explained to him in the language which he fully understood. Obviously in view of this categorical stance and counter

statement on affidavit of detaining authority in absence of rebuttal, in the facts and circumstances of this case, it is concluded that the detenu was

readover and explained the order and grounds in the language which he fully under soot and was also informed of his right of making representation

to Govt. against the order.

The authority Smt. Razia Umar Bakshi vs. Union of India (AIR 198 SC 1751) is not applicable to the facts and circumstances of this case. The

other two citations SLJ 1999 J&K 241 and SLJ 1996 J&K 301 too are not applicable to the facts and circumstances of this case. The authorities

turn out on the fact of their respective cases.

The contention that the impugned detention order suffers from nonapplication of mind does not appear well founded. It is not denied that the

detention order based as it is on grounds has its rootes in the report/dossier forwarded by Sr. Super intendent of Police, Anantnag to the detaining

authority Dy. Commissioner, Anantnag. The detaining authority in counter affidavit has specifically stated

In reply to ground of challenge it is submitted that respondent No. 2 after applying his mind and after satisfying himself passed the order of

detention against the detenu, which is evident from perusal of record as well as from the perusal of grounds of detention, hence the grounds of

challenge is devoid of force of law and on this count petition deserves no consideration.

In the light of the above positive statement of the detaining authority, perusal of the grounds would show that the detaining authority has drawn

its subjective satisfaction on record which speaks petitioner's membership of H.M. and joining terrorist activities since 1997, getting training in arms

and ammunition, planting lED's leading to death of security personal and civilians, harbouring terrorists and motivating youths to join and perpetrate

the terrorist activities and arrest of the subject and his involvement at least in three cases registered at P/s Doru. After detaining authority has drawn

satisfaction on all this material it is not for this court while exercise powers under writ jurisdiction to interfere with the decision arrived at by the

detaining authority to detain the subject. Neither any pleadings nor any allegation of malafide exercise of power is raised in this case.

In PI. Lakhanpaul vs. Union of India (AIR 1967 SC 908 at Page 915), a five member constitutional bench of the court in the context of

satisfaction of the empowered authority in the context of Defence of India Rules 1962 observed :

...So long as that decision was arrived at on materials, since this court does not sit in appeal against such a decision, it would not ordinarily

examine the adequacy or the truth of those materials and would not interfere with that decision on the ground that if the court had examined them it

would have come to a different conclusion it is, therefore, not possible to agree with the contention that this is a case of a malafide exercise of

power or a case of nonapplication of mind by the authority concerned.

There is no denying of the fact even from other side that subject Mushtaq Ahmed Mir was in punitive detention when on 03.04.2000 he was

detained under section 8 of J&K P.S. Act, 1978. His order of detention is passed notwithstanding, he being detained since 21.03.2000 in FIR

2412000 of P/S Doom. The law is settled that a person in custody can be put under preventive detention but the requirements for passing a

detention order in such case is that the detaining authority was aware of the detenu being in detention and further that there were compelling

reasons to justify preventive detention despite the detenu being under custody. See Dharmendra Suganchand Chelawat case (AIR 1990 SC

1196). The matter is to be examined from stand point of compelling reasons. If the authority had the material before it to serve basis of satisfaction

of likelihood of release of detenu from custody in near future coupled with the nature of antecedent activities of the detenu, the detaining authority

has the powers to pass the detention order.

Detenu in terms of grounds is involved in FIR 10/2000 u/s 302 RPC, 3/4 Exp. Sub. Act registered at P/s Doom; FIR No. 14/2000 U/s 3/4

Exp. Sub. Act 307, 302 RPC again registered at P/s Doom and FIR No. 24/2000 U/s 7/25 I.A. Act. The detenu was in custody in the later case

when the order of detention was passed. The detention order shown that the detaining authority was very much aware about the detenu being in

custody and further the detaining authority has apprehension that the detenu may get released on bail in which eventuality the security of the State is

endangered. In the counter the detaining authority has again stated that he has apprehension based on the circumstances of the case that he may be

released on bail and in which case the very purpose of keeping him away from terrorist activities shall be defeated. Added to this not with standing

henious nature of the offences alleged against detenu, it is common experience, without any need to pronounce upon the reasons here, that the

people do get bail for reasons good as well as bad in such type of cases. It is not necessary in ail circumstances that before the detaining authority

apprehends a detenu to come out on bail, a bail application should have been necessarily moved on behalf of detenu before the competent forum.

The word 'apprehension' that detenu may get bail only implies a reasonable guess/comprehension on the part of the detaining authority that the

detenu may succeed to get the bail. It is not a requirement of law that in such cases for the detaining authority to apprehend the subject getting

released on bail, the subject must have moved application for bail. In this case apart from the awareness and apprehension of the detaining

authority it is to be noted that the detenu is involved at least in three criminal cases with allegations of exploding of improvised explosive devices

and recovery of arms and ammunition. Besides providing shelter, food and hideouts to terrorists of H.M. organization. The other allegation against

him is motivating youths to join the armed war against the govt. established by law in order to carry forward the proclaimed ais and objectives of

H.M. All this is based on material/dossier supplied to tire detaining authority by the Sr. Superintendent of Police. Anantnag. Obviously there is

material before the detaining authority on which the detaining authority has passed satisfaction and after reckoning the nature and range of

antecedent activities of the detenu, the authority has come out with a case of compelling reasons to warrant preventive detention of the subject

while in custody in regular case. Viewed thus this contention also fails.

In result, the detention is not shown invalid and vitiated on the grounds raised and argued as above. The petition stands dismissed.