Najeeb Ahmad Bhat vs State

Bansi Lal Bhat, J.—Detention order No. 07/DMK/PSA/2013 dated 05.8.2013 passed by District Magistrate, Kulgam, is the subject

matter of instant Habeas Corpus Petition filed by detenue Najeeb Ahmad Bhat who has been detained under the provisions of Public Safety Act.

Perusal of copy of detention order brings it to fore that the detaining authority has not prepared the grounds of detention itself but the same appears

to have been prepared by the Superintendent of Police concerned. The preparation of grounds of detention by the detaining authority is a must

before passing the order of detention. It is apt to reproduce para-1 of the impugned detention order, same is reproduced as under:

Whereas on the basis of grounds of detention placed before me by the Superintendent of Police, Kulgam vide his No. Pros/PSA/2013/5178

dated 5.8.2013, I am satisfied that with a view to prevent Najeeb Ahmad Bhat S/o. Mohd. Yousaf R/O Kotbal Tehsil and District Kulgam from

acting in any manner prejudicial to the security of the State, it is necessary to do so.

Yet another aspect of the matter is that there is no material on record to hold that the copies of detention order, grounds of detention and the

material attached to the order of detention, were supplied to the detenue so as to enable him to make effective representation.

On the grounds urged for seeking quashment of detention order, this Court has already quashed detention order in case titled Mohammad

Shaban Dar v. State and others (HC 84/2013) decided on 29-10-2013, which is taken note of:

Order of detention bearing No. 09/DMK/PSA/13 dated 22-08-2013 is called in question in this petition inter alia on the grounds that the

District Magistrate has not applied his mind to the facts of the case; the material, on which he has relied upon while passing the detention order, has

not been supplied to the detenue; the detenue has been ordered to be detained on the basis of his activities, which are said to be highly prejudicial

to the security of the State and further his detention has been ordered to prevent/deter him from indulging in unlawful activities. It is also claimed

that due to inadequacy of statutory provisions to prevent the detenue from indulging in unlawful activities, he has been ordered to be detained.

Learned counsel for the petitioner submitted that the order of detention is vitiated in view of law laid down by the Hon'ble Supreme Court in

catenae of judgments reported in Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, and prayed that the detention order be quashed.

Mr. Kawoosa, learned Senior AAG, vehemently argued that the material, on which the detaining authority has relied upon while ordering

detention to the detenue, has been supplied to the detenue and he (detenue) has acknowledged receipt thereof as well. Mr. Kawoosa further

submitted that the activities of the detenue were so serious that it became necessary for the detaining authority to order for his detention in terms of

section 8 of the J & K Public Safety Act, 1978. Learned counsel, accordingly, prayed for dismissal of the writ petition.

Right to life and personal liberty is a basic human right, which is recognized by article 21 of the Constitution of India. A person can be deprived

of his life and personal liberty only in accordance with the procedure established by law. Depriving a person of his liberty, without affording him

opportunity to defend himself in a Court of law, is a matter of serious concern. However, for the larger interests of society, framing of detention

laws have been authorized by article 22 of the Constitution of India. Inbuilt defenses have been provided to ensure that a citizen/person is not

deprived of his personal liberty at the ipse dixit of an authority. The moment a citizen/person is deprived of his personal liberty, in accordance with

the preventive detention laws, the authorities have to comply with the mandate contained in article 22 of the Constitution of India and the provisions

of the Act of 1978.

In the case on hand, the District Magistrate has entered into satisfaction on the basis of grounds of detention placed before him by

Superintendent of Police (SP), Kulgam. The detention order has, thus, been passed on the grounds of detention, which have been supplied by the

S.P. It is, therefore, manifestly clear that the detaining authority has not applied his mind to any material placed before it. In terms of the Statute, it

is the duty of the detaining authority to consider the material placed before it and framing grounds of detention in case he comes to a conclusion

that detention of a person in terms of provisions of the Act of 1978, in the facts and circumstances of the case, is warranted.

In the facts of this case, detention order is vitiated for the very reason that grounds of detention have been framed by the police and not by the

detaining authority. The order of detention further cannot stand scrutiny of law, in as much as, the detenue has been ordered to be detained as his

activities were seen to be highly prejudicial to the security of the State and it was further seen that he was to be prevented from indulging in

unlawful activities. The detaining authority, it appears, is oblivious to the legal position. A person can be ordered to be detained either on the

grounds of his activities being prejudicial to the security of the State or against public order. The unlawful activities and inadequacy of statutory

provisions, for indulging in such activities, cannot be a ground, in law, to order for detention of a person.

The case on hand being squarely covered by the Judgment aforementioned, therefore, in view of the findings recorded therein, the order of

detention, impugned herein, is rendered illegal.

For the above stated reasons, this petition is disposed of in the following manner:

By issuance of writ of Certiorari, the impugned order bearing No. 07/DMK/PSA/2013 dated 05-08-2013 is quashed. Respondents are directed

to release Najeeb Ahmad Bhat S/o. Mohd. Yousaf R/O Kotbal, Tehsil & District Kulgam, from the preventive custody.

Disposed of.