Umar Mushtaq vs State

Mr. Mohammad Yaqoob Mir, J. - Pursuant to order No.05-DMK/PSA of 2016 dated 23.02.2016, passed by District Magistrate, Kupwara,

detenue, namely, Umar Mushtaq has been detained under Public Safety Act and lodged in Kotbhalwal Jail, Jammu.

According to the learned counsel for the petitioner, the detenue was in custody in connection with case FIR No.123/2015, 124/2015,

253/2015 and 27/2016 and while in custody has been ordered to be detained under Public Safety Act. No compelling reason has been recorded

for passing the impugned order which was a requirement as the detenue was already in custody. Further, the material forming base for the

detention has not been supplied to the detenue disabling him from making an effective and purposeful representation against his detention.

It is settled that a person in custody in connection with criminal cases 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 v. 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

Nothing has been brought on record to show that the material forming base for the order of detention has been furnished to the detenue when

the detenue admittedly was arrested in connection with aforesaid cases. The statements recorded under Section 161 Cr. P.C in connection

therewith were also required to be furnished to the detenue. The non supply of the material has disabled the detenue from making an effective

representation so as to show his innocence. Non supply of material forming base for detention is violative of the right guaranteed under Article

22(5) of the Constitution.

It shall be quite advantageous to quote following Para from the judgment rendered in case captioned Powanammal v. State of T. N. and

another reported in 1999 (2) SCC 413:

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 afforded the opportunity of making

a representation against the order.

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. he is in custody in connection with a case, then there is no requirement of

passing an order of detention unless, of course, there exist such circumstances which warrant passing of order of detention. Preventive laws have

the effect of depriving a person of his liberty which is precious but deprivation thereof at times becomes indispensable. However, for justifying such

deprivation, the safeguards as are provided by law are also 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.

Viewed thus, the order of detention bearing No. 05-DMK/PSA of 2016 dated 23.02.2016 being unsustainable is quashed. Detenue shall be

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

Petition succeeds as above.