Shahid Bashir Mir vs Union Territory Of J&K & Anr

M. A. Chowdhary, J

Impugned is the order of detention bearing No. 32/DMP/PSA/21 dated 18.08.2021 (for short ‘impugned order’) passed by District Magistrate Pulwama (for short ‘detaining authority’), in terms whereof the detenue namely Shahid Bashir Mir has been taken into preventive detention under Section 8 of the J&K Public Safety Act, 1978 ( for short ‘the Act’). The said detention order is being challenged through the medium of the instant petition, being in breach of the provisions of Article 22(5) of the Constitution of India read with Section 13 of the J&K Public Safety Act, 1978.

It is being pleaded in the petition that the detaining authority has not attributed any specific allegation against the detenue. Furthermore, it is stated that the detenue has been incapacitated in filing a representation for omission on part of the detaining authority as the grounds of detention do not reveal as to who were the anti-national elements accompanied by the detenue for carrying out the specific activities. It is also the submission of the detenue that the order of detention and the connected documents annexed with the petition clearly show violation of right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India.

Respondents in their counter affidavit have stated that the detenue was ordered to be detained with a view to prevent him from acting in a manner prejudicial to the’ security of the State’ and if he would be let free there will be every likelihood of his re-indulging in subversive activists and will continue to instigate the youth of the area to indulge in such activities.

Heard and considered.

Learned counsel for the detenue while being heard makes reference to the grounds of the detention and states that on a cursory look on the same it is manifest that same are vague. It is nowhere stated in the grounds of detention as to who were the youth whom the detenue had instigated for indulging in subversive activities. The particulars of the youth whom the detenue has lured to indulge in subversive activities, as alleged, is also not mentioned in the grounds of detention. In addition, learned counsel submitted that the allegations levelled against the detenue are totally vague as nothing specific has been stated in the grounds of detention.

In rebuttal, learned Dy.AG submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority against his detention.

Before appreciating the rival contentions of the parties, it would be appropriate to note that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority. Hon’ble Apex Court in a case titled ‘Abdul Latif Abdul Wahad Sheikh Vs. B.K.Jha, reported as (1987) 2 SCC 22’, has held that the procedural requirements are the only safeguards available to a detenue since the Court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.

The detention record, as produced, reveals that the detenue was involved in a case registered vide FIR No. 263/2020 under Sections 307 IPC, 7/27 Arms Act and 16, 20 ULA(P) Act, at Police Station, Pulwama. Involvement of the detenue in the aforementioned case appears to have heavily weighed with the detaining authority while passing detention order. However, the detenue had been admitted to default bail in this case by the court of competent jurisdiction.

The main argument raised by learned counsel for the detenue that despite having been admitted to bail, detenue was not released and he was in the custody of the police at the time of passing of the detention order, 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 has to be “no”. The law on the subject has been laid down by the Hon’ble Apex Court in Sama Aruna V. State of Telangana & Anr. (AIR 2017 SC 2662). Para 24 of the judgment reads as :-

“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 2002-2003. 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 carry on 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."

The detention record and the impugned order reveal that the detenue had been admitted to bail in case registered vide FIR No.263/2020 at Police Station Pulwama, however, there is no record as to whether he was released. There is even no copy of the order of bail, except copy of order of the Special Court (NIA) Srinagar, whereby on 30.07.2021 further remand beyond the statutory period of 180 days was refused, informing the detenue of his right to compulsive bail.

On the touchstone of the law laid down above, the detenue in the present case could not have been detained after taking recourse to the provisions of the Public Safety Act, when he had not been released from the custody of the police in the above referred case, therefore, in view of the facts of the case and the law laid down by the Hon’ble Apex Court as quoted hereinabove, the impugned order of detention, does not sustain on the aforesaid grounds.

Vide impugned order, the Detaining Authority has not communicated to the detenue the time limit, in which, he could make a representation to him, till approval of the detention order by the Government. In a case of National Security Act, titled Jitendra Vs. Dist. Magistrate, Barabanki & Ors., reported as 2004 CRI.L.J. 2967, the Division Bench of Hon’ble Allahabad High Court, has held:-

“10. We make no bones in observing that a partial communication of a right (in the grounds of detention) of the type in the instant case, wherein the time limit for making a representation is of essence and is not communicated in the grounds of detention, would vitiate the first fundamental right guaranteed to the detenue under Article 22(5) of the Constitution of India, namely, of being communicated, as soon as may be, the grounds of detention.”

This is another reason, as to why the impugned order would be vitiated since the detenue’s right to make a representation to the detaining authority was only available to him till approval of detention order by the Government, it follows as a logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to him i.e., till the approval of the detention order by the State Government.

For the foregoing reasons and the law laid down as above, this petition is allowed. Impugned order of detention No. 32/DMP/PSA/21 dated 18.08.2021 passed by District Magistrate, Pulwama, is, as such, quashed. The detenue namely Shahid Bashir Mir S/O Bashir Ahmad Mir R/O Wanpora Pulwama, be released from the preventive custody forthwith provided he is not required in connection with any other case/s.

Detention record, as produced, be returned to learned Dy.AG.

Disposed of, accordingly.