Nissar Ahmed Dar vs State

Syed Bashir-Ud-Din, J.—Subject Nissar Amed Dar is detained u/s 8 of J & K Public Safety Act, 1978 and lodged in District Jail,

Udampur under O. No. 70 of 2001 dated 10-2-2001 of District Magistrate, Baramulla (Annexure P-1). This order is impugned on number of

grounds. However, the counsel confines his submissions to following two grounds :-

First that there has been inordinate delay of over two months in executing the detention order when in fact detenu was with the State Govt., in

substantive offence(s) and no explanation or reasons are given for delayed execution which vitiates the order.

Secondly that the above ground of delay in execution coupled with the fact that no application for bail has been made in the substantive offence,

renders the order to suffer from non-application of mind and order is vitiated.

Respondents in terms of counter filed by the Detaining Authority (respondent No. 2) and submissions of the Govt. Advocate has resisted the

challenge to the detention order. It is submitted that though there has been delay of 71 days in executing/implementing the order but the detenu was

already with the State Govt. in a substantive offences under FIR No. 131/2000 Under Sections 7/25 I.A. A registered at P/S Bandipora. It is also

submitted that the detaining authority has applied its mind to all material facts and circumstances appearing on record. Merely because no

application has been moved that is of no consequence as the Detaining Authority has the apprehension that the detenu may get bail and his being at

large is detrimental to the security of the State.

Record reveals that, the detention order has been passed on 10-2-2001 when the subject was with the authorities of State Govt. since 4-7-

2000, the date of his arrest in FIR No. 131/2000 u/s 7/25 IAA registered at P/S Bandipora. This order has been executed on 11-5-2001 and the

subject was taken in preventive detention on this date. Obviously apart from period of detention in substantive offences of the subject has been

taken in preventive detention 71 days after the order was passed on 10-2-2001. Neither in counter nor the Govt. Advocate has any explanation to

explain the delayed execution of the warrant. There is no even slight murmur in the counter of any reason why the order of detention was not

executed all along. It is not alleged that the detenu was absconding or evading arrest and rightly so as the detenu was with the State Govt. in

punitive detention for at least over six months by the date, the order of detention was passed. The record as also grounds show that it was within

contemplation of the authority that the detenu was already being held in punitive detention. In absence of any explanation or reason forthcoming

from record or otherwise, the order of detention appears to be vitiated. The 'live and proximate link' between the grounds and purpose of

detention is snapped and in any case quite stale when comprehended within the ambit of law tethered to unreasonable delay in execution of the

detention order and impact of non-application of mind by the detaining authority.

In K.P.M. Basheer Vs. State of Karnataka and another, it is observed :-

...Under these circumstances, we are of the view that the order of detention cannot be sustained since the 'live and proximate link' between the

grounds of detention is snapped on account of the undue and reasonable delay in securing the appellant/detenu and detaining him....

The other contention that as bail application has not been moved in the matter, therefore, passing of detention order while detenu was under

punitive detention would render order bad, cannot be accepted. The Detaining Authority has given the ""compelling reasons"" in terms of the grounds

for ordering preventive detention of the subject. The Detaining Authority's observation that the detenu's being at large is detrimental to the security

of the State is very much intact even if bail application is not moved as it speaks of only apprehension on objective consideration of the detenu's

case on the part of the Detaining Authority. There has been material before the authority on which it has drawn satisfaction that the detenu if

released from custody, after taking into account his antecedental activities. Detenu is likely to indulge in activities detrimental/ prejudicial to the

security of the State. The Detaining Authority has thereby complied with the mandate of law in Rameshwar Shaw Vs. District Magistrate, Burdwan

and Another, where three Hon'ble Judges of the Apex Court answered the questions raised hereto 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 (i) the Detaining Authority was aware of the fact that the detenu is already in

detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression

compelling reasons"" in the context of making an order for detention of a person already in custody implied that there must be cogent material

before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and

(b) taking into account the nature of 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 engaging in such activities.

In that view of the matter contention is bereft of any merit.

In result, for the view taken on the first contention of delayed execution of the detention order and its impact on this case, the detention order

and the consequent detention is vitiated and unsustainable under law. The impugned order No. 70 of 200rl dated 10-2-2001 is quashed.

Respondents/ detaining authority/officer having physical corpus of the detenu Nissar Ahmed Dar s/o Ab. Razak Dar R/o Onagam Bandipora is

directed to release him from custody and set him free forthwith provided he is not required in any other case, offence or matter. Copy of the order

be given to petitioner free of cost and communicate the order to concerned.

Record produced by Mr. R. Q. Gadda, GA has returned to him in open Court.