Shabir Ahmad Parray vs UT Of J&K & Another

Sanjay Dhar, J

1) Impugned in this petition is the detention order bearing No.19/DMP/PSA/20 dated 13.07.2020, passed by District Magistrate, Pulwama (respondent

No.2) whereby petitioner has been taken into preventive custody with a view to prevent him from acting in any manner prejudicial to the security of

the State. The said order has been passed by respondent No.2 in exercise of his powers under Section 8 of the Jammu & Kashmir Public Safety Act,

1978.

2) The petitioner has challenged the impugned order of detention on the grounds that at the time when the impugned order of detention was passed, he

was already in custody in connection with FIR No.18/2020 for offences under Section 18, 19, 20 and 39 UL A (P) Act of Police Station, Khrew, and,

as such, there were no compelling reasons for the detaining authority to pass the detention order. It is further contended that the material forming basis

of the grounds of detention in the form of copy of FIR, copy of dossier, copies of statements of witnesses recorded under Section 161 Cr.P.C have

not been supplied to the detenue thereby curtailing his right to make an effective representation against impugned order of detention. Lastly, it has

been contended that the grounds of detention are replica of the police dossier which clearly establishes that there is non-application of mind on the part

of detaining authority while passing the impugned order of detention.

3) Respondent No. 2 (District Magistrate, Pulwama) has filed counter affidavit on behalf of the respondents. In the said affidavit respondents have

submitted that they have followed all the constitutional and statutory safeguards while passing the impugned order of detention. It is contended that the

activities of the detenue have been found prejudicial to the security of the State and, as such, the detaining authority with a view to prevent him from

acting in any manner prejudicial to the security of the state was compelled to pass the impugned order of detention. Respondents have submitted that

all material which formed basis of the impugned detention order and the grounds of detention were furnished to the detenue and that the detaining

authority has applied its mind while passing the impugned order of detention. To support its contentions, the detaining authority has produced the

detention record.

4) I have heard learned counsel for the parties and perused the record.

5) The first contention that has been raised by the petitioner is that there were no compelling circumstances for the detaining authority to pass the

impugned order of detention when the detenue was already in custody in connection with case FIR No.18/2020.

6) It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so,

compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred

from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in

law. I am supported in my aforesaid view by the judgments of the Supreme Court in the cases of Surya Prakash Sharma v. State of U. P. and others,

1994 SCC (Cri) 1691 and T. P. Moideen Koya vs. Government of Kerala and ors. reported in 2004 (8) SCC 106.

7) Adverting to the facts of the instant case, as per the detention record, FIR No.18/2018 for offences under Sections 18, 19, 20 and 39 of ULA(P)

was registered against the detenue in Police Station, Khrew and he was taken into custody in connection with investigation of the said case on

12.05.2020. Excepting the aforesaid FIR, there is no material on record to even remotely show that it was absolutely necessary for the Detaining

Authority to detain the petitioner under the provisions of the Jammu and Kashmir Public Safety Act.

8) In the grounds of detention, after referring to the contents of the aforesaid FIR, it has been mentioned that these activities of the detenue are

prejudicial to the security of the State and being highly motivated to carry on the illegal designs he is not likely to desist from indulging in antinational

and anti-social activities. However, the Detaining Authority has not brought on record any other cogent material or furnished any other cogent ground

to show that the detenue is not likely to desist from the aforesaid activities. It appears that the satisfaction of the Detention is solely based on the

allegations made in the aforesaid FIR and no other material.

9) As already noted, the Supreme Court in a catena of judgments has clearly held that unless there are compelling circumstances and cogent material

before the Detaining Authority for passing a detention order against a person who is already in custody or is facing criminal prosecution in a

substantive offence, the Detaining Authority cannot pass an order of detention against such a person.

10) From the perusal of material/record before me, it is clear that the detenue has been shown involved in a substantive offence. When it is so, the

Detaining Authority was bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by

resorting to normal law and, as already discussed, there is no such material on record. The impugned order of detention, therefore, cannot be

sustained.

11) The other ground that has been urged by the petitioner is that whole of the material which formed the basis of grounds of detention was not

furnished to him thereby curtailing his right to make a representation against to the impugned order of detention. The ground projected in this regard

appears to have force as the respondents have not brought anything on record to negate the submission of the petitioner. The execution report

indicates that the detenue has been provided copy of the detention order and dossier. There is no mention of furnishing of other material like grounds

of detention, FIR including the documents relating to the FIR, which is the basis of the grounds of detention. In the absence of the material on the

basis of which grounds of detention have been formulated, the detenue has been rendered handicapped and hampered in making an effective

representation against the order of detention. The violation of this vital safeguard by the respondents renders the impugned order of detention

unsustainable in law.

12) Viewed thus, the petition is allowed and the detention order No.19/DMP/PSA/20 dated 13.07.2020, passed by the District Magistrate,

Pulwamaâ€"respondent no.2 directing the detention of the detenue, is quashed. Respondents are directed to release the detenue from the preventive

detention forthwith, provided he is not required in connection with any other case.

13) The detention record be returned back to the learned counsel for the respondents.