Samiullah Sheikh vs State Of Jammu & Kashmir And Ors

Rashid Ali Dar, J

Challenge in this petition is to order No.45/DMB/PSA/2018 dated 06.07.2018, passed by District Magistrate, Baramulla-respondent No.2 herein, whereby Sami-ullah Sheikh (hereinafter referred to as the detenue), has been taken into preventive custody and lodged in Central Jail, Kotebhulwal.

The petitioner's case, as set out in the petition, is that the respondents while passing the impugned detention order have violated the procedural safeguards provided under the Constitution and J&K Public Safety Act, they have ignored to provide material relied upon and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded and further the impugned order suffers from non-application of mind.

The respondents, on notice, appeared and filed counter affidavit wherein they resisted the petition.

Learned counsel for the petitioner projected host of grounds while seeking quashment of the impugned order but the star ground is that the detenue was already in custody in connection with case FIR No.132/2018 registered at P/S Pattan under Section 7/25 Arms Act, 13 ULA(P) Act but despite that has been detained under Public Safety Act. For so doing, no compelling reasons have been recorded for passing the order of detention.

The object of passing the order of detention is to deter a person from acting in any manner prejudicial to the security of the State or public order. When the movement of the person is already under curtailment i.e. is in custody in connection with a criminal case, then there can be no requirement of preventive detention, unless, of course, circumstances exist for passing order of detention. Preventive laws have the effect of depriving a person of liberty which is precious, deprivation thereof at times may be unavoidable, for justifying such deprivation, safeguards as are provided by law are required to be respected. A person who dares to cause any type of insecurity or threatens security of the State has to be dealt with iron hand but for so doing the Constitutional safeguards as are available are also to be respected.

It is settled that a person in involved in a criminal case can be detained under the provisions of preventive laws provided there are compelling circumstances for so doing otherwise the order of detention shall be bad. In this connection, it is quite apt to quote following Para from the judgment "T. P. Moideen Koya vs. Government of Kerala and ors." reported in 2004 (8) SCC 106:

"......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 detenue was likely to be released on bail"

It shall also be apposite to quote Para 5 of the judgment of the Hon'ble Apex Court in "Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691, has held as under:

"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."

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

Taking conspectus of afore-stated facts, reasons and the law laid down by the Hon'ble Apex Court, the order of detention impugned bearing No. 45/DMB/PSA/2018 dated 06.07.2018, is quashed. Further custody of the detenue shall be governed by the orders as shall be passed by the court of competent jurisdiction relatable to the criminal cases registered against him.

Detention records be returned to the learned counsel for the respondents.