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Judgment
By the dint of order bearing No. 164/DMB/PSA/2018 dated 27th of January, 2018, passed by the Respondent No.2/District Magistrate,
Baramulla, in exercise of the powers conferred in him under clause (a) of Section 8 of the J&K
Public Safety Act, 1978 (for short “The Act of 1978â€), one Parvaiz Ahmad Najar S/o Abdul Rehman Najar R/o Najar Mohalla, Tujjer Sharief,
District Baramulla, has been detained and lodged in District Jail, Kuthua.Â
The detenue has challenged the said order of detention, chiefly, on the grounds that the detaining authority has failed to apply his mind to the fact
whether the preventive detention of the detenue was imperative, notwithstanding his custody in a substantive offence. To this, it has been added, that
the Respondent No. 2 has passed the order of detention on the dictates of the sponsoring agency, i.e. the Officer who has prepared the police dossier
and no attempt has been made by the Respondent No.2 to scan and evaluate it before passing the order of detention.Â
Counter has been filed by the Respondents, wherein it is stated that the grounds of detention have been furnished to the detenue. The detaining
authority has complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue has failed to avail
the remedy prescribed under the Act. He has not filed the representation against the order of detention. It has also been stated that the detenue is
involved in case FIR No. 19/2017, registered in Police Station, Sopore, for the commission of offences punishable under Sections 10-13 ULA (P) Act
and case FIR No. 07/2018, registered in Police Station Bomai, for the commission of offences punishable under Sections 506 of RPC, 13 ULA Act.
In the end, it has been urged that since the order of detention has been passed on justifiable grounds, therefore, the instant Habeas Corpus petition
merits dismissal, and it may, accordingly, be dismissed.
Heard and considered.
The main plank of the argument of the learned counsel for the detenue is that since the detenue was in custody of the police authorities for a
substantive offence therefore, there was no need to direct his preventive detention. It has been stated in the Counter Affidavit that the detenue is
involved in case FIR No. 19/2017, registered in Police Station, Sopore, for the commission of offences punishable under Sections 10-13 ULA (P) Act
and case FIR No. 07/2018, registered in Police Station Bomai, for the commission of offences punishable under Sections 506 of RPC, 13 ULA Act.
The arrest of the detenue in the said FIRs, at the time of the passing of the order of detention, has not been disputed.
Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, the question that arises for
consideration is whether an order of detention could be passed on the face of such an eventuality? The answer to this question is an emphatic
“Noâ€, taking into consideration the law laid down by the Apex Court of the country in paragraph No.24 of the judgment delivered in the case of
“Sama Aruna v. State of Telangana & Anr.â€, reported in “AIR 2017 SC 2635â€, which may be noticed :
“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His
custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime
in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In
Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:
“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as
the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the
apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in
the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of
detention under the National Security Act should not ordinarily be passed.â€
The same view has been repeated and reiterated by the Hon’ble Supreme Court in paragraph No. 13 of the judgment delivered in the case of
“V. Shanthav. State of Telangana & Othersâ€, reported in “AIR 2017 SC 2355â€, that reads as under :
“13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers
and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to
prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that
there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil
deeds. The rhetorical incantation of the words “goonda†or “prejudicial to maintenance of public order†cannot be sufficient justification to
invoke the draconian powers of preventive detention. To classify the detenue as a “goonda†affecting public order, because of inadequate yield
from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The
grounds of detention are ex facie extraneous to the Act.â€Â Â
Testing the instant case on the touchstone of the law laid down above, the detenue could not have been detained after taking recourse to the
provisions of “the Act of 1978â€, when he was already in the custody of the police authorities in the cases, the details whereof have been given
hereinbefore. His custody in police for the offence stated above, has been converted into the custody under the impugned detention order. May be the
detaining authority might have been laboring under the belief that if the detenue applies for bail, he may succeed in seeking his release, but this
apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application. In the event of his release on
bail, the State could have exercised its right to knock at the doors of a higher forum. This single infraction knocks the bottom out of the contention
raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail. It cuts at the very root
of the State action. The State could have taken recourse to the ordinary law of the land.Â
Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision
of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be
deprived of personal liberty, guaranteed to him/her by the Constitution and of which, he/she cannot be deprived except in due course of law and for
the purposes sanctioned by law.Â
In the backdrop of what has been said and done above, the instant Habeas Corpus petition is allowed, as a consequence of which, the order of
detention bearing No. 164/DMB/PSA/2018 dated 27th of January, 2018, passed by the Respondent No.2/District Magistrate, Baramulla, is quashed,
with a further direction to the respondents to release the person of Parvaiz Ahmad Najar S/o Abdul Rehman Najar R/o Najar Mohalla, Tujjer Sharief,
District Baramulla, forthwith from the preventive custody, if not required in any other case.
The record, as produced by the learned Additional Advocate General, be returned to him with utmost dispatch.