Showkat Ahmed Lone vs State and Others

M. Yaqoob Mir, J.—Heard. Considered.

Detenue namely Showkat Ahmed Lone S/o. Mohammad Kamal Lone R/o. Arin, Tehsil and District Bandipora, has been arrested by the

Security Forces on 23-5-2007 in connection with a criminal case registered against him under FIR No. 93/2007 in Po lice Station, Bandipora, for

commission of offences punishable u/s 19-UL Act, 121 RPC, 8/20 NDPS Act and 7/25 Arms Act. While in custody detention order impugned

bearing No. DET/PSA/07/439/2007 dated 3-8-2007 has been passed by District Magistrate, Baramulla whereunder detenue has been detained

under the provisions of J.&K. Public Safety Act, 1978. Dissatisfied with the order of detention, father of the detenue has filed this petition seeking

quashment of the same.

Appearing counsel for petitioner firstly projected that the detenue who was in custody in connection with case under FIR No. 93/2007 in Police

Station, Bandipora had not applied for bail. Neither bail had been granted, nor there was likelihood of grant of bail as the offences u/s 121, R.P.C.

and 8/20 N. D.P.S. Act carries capital punishment, so the likelihood of obtaining bail at the stage of passing of detention order was unimaginable.

The object of passing the order of detention is to detain a person whose activities when at large are considered to be prejudicial to the security

of the State. To achieve the object liberty of a person is curtailed. When a person is already in custody whether the order of detention is justified or

not depends upon the facts and circumstances of each case. The passing of detention order against a person who is already in custody in

connection with substantive offences is permissible but the detaining authority has to record the compelling reasons. Compelling reasons are to be

gathered from the attending circumstances. Detaining authority appear to have derived the satisfaction by observing likelihood of grant of bail, but

when the offences allegedly committed carries punishment of death and life imprisonment grant of bail is not warranted u/s 497, Cr.P.C. except

when there are reasonable grounds to believe that the person is not involved. In the case in hand, among other offences, one offence punishable u/s

121, R.P.C., carries the punishment of death or imprisonment for life. Apart from that one more offence as alleged to have been committed by the

detenue is punishable u/s 8/20 NDPS Act, grant of bail vis-a-vis said offence is governed by Section 37 NDPS Act. Chance of bail under such

offence is far from imagination unless some extenuating circumstances are brought on record. The object of Section 37 NDPS Act is to negate the

grant of bail. In view of such circumstance likelihood of grant of bail as appear to have been gathered are imaginary.

It is quite relevant to quote Para 5 of the Judgment delivered by Supreme Court in Surya Prakash Sharma Vs. State of U.P. and Others, :

The question as to whether and in what circumstances an order for preventing detention can be passed against a person who is already in custody

has had been engaging the attention of this Court since it first came for consideration before a constitution Bench in Rameshwar Shaw Vs. District

Magistrate, Burdwan and Another, , To eschew prolixity we refrain from dealing all those cases, except that the Dharmendra Suganchand

Chelawat and another Vs. Union of India and others, wherein three Judge, Bench, after considering all the earlier relevant directions including

Rameshwar Shaw answered the question in the following words:

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 must show that:

i) the detaining authority was aware of the fact that the detenue was already in detention and

ii) there was 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 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) that 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.

The learned appearing counsel next contended that the order of detention has been passed on 3-8-2007 and executed on 6-9-2007 which

violates the rights guaranteed under PSA i.e. when the order of detention is passed on 3-8-2007 grounds of detention were to be communicated

within five days and in exceptional circumstances within 10 days so as to afford the detenue earliest opportunity of making the representation.

Admittedly, order of detention dated 5-3-2007 shown to have executed on 9-6-2007 is not in keeping in view the object of Section 13 of Public

Safety Act.

Next it has been contended that grounds of detention have not been read over to the detenue in the language understood by him which in turn

has disabled him to make an effective and purposeful representation. From the perusal of the record the contention of the learned Counsel is found

correct, as the material appear not to have been furnished to the detenue. It is apt to quote the observation as made by Apex Court in the

judgment reported in Powanammal Vs. State of Tamil Nadu and Another, .

The amplitude of the safeguard embodied in Article 22(5) extends, not merely to oral explanation of the grounds of detention and the material in

support, thereof in the language understood by the detenue but also to supplying their translation in script or language which is understandable to

the detenue. Failure to do so would amount to denial of the rights of being communicated the grounds and of being affordable the opportunity of

making a representation against the order.

The grounds projected for above stated reasons prevail, resultantly, detention order No. DET/PSA/07/439/2007 dated 3-8-2007 is quashed.

Detenue namely Showkat Ahmed Lone S/o. Mohammad Kamal Lone R/o. Arin, Tehsil and District Bandipora is ordered to be released forthwith

provided he is not required in connection with any other case. Detention record be returned to the appearing counsel for respondents.

The petition accordingly disposed of.