Waqar Ahmad Moharkhan vs State Of Jammu & Kashmir And Anr

1) By virtue of order bearing No.DMS/PSA/20/2018 dated 05.09.2018, passed by respondent No.2-District Magistrate, Srinagar, in exercise of powers under Section 8 of the J&K Public Safety Act, 1978, Shri Waqar Ahmad Moharkhan son Khursheed Ahmad Moharkhan resident of Baghwanpora Amdakadal Lal Bazar, Srinagar, has been taken into preventive custody and lodged in Kote-bhalwal Jail, Jammu. Veracity of the said order is assailed in the instant petition on the grounds detailed out therein.

2) The petitioner's case, as set out in the petition, is that the detenue, on 12.08.2018 was arrested by the security forces and thereafter was booked in connection with case FIR No.22/2018 registered by Police Station, Nowhatta The detenue applied for bail which was granted by the Court of Additional Sessions Judge, Srinagar but was not released and instead was shifted to Central Jail, Kotebhalwal pursuant to impugned order. The fact regarding grant of bail has not been made mention of in the grounds of detention. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, baseless, non-existent and unfounded.

3) The respondents, despite various opportunities, did not chose to file the counter affidavit. However, learned Dy. AG has made available the detention records.

4) Heard learned counsel for the parties and also perused the record.

5) Firstly, learned counsel for the petitioner contended that the detenue had been admitted to bail in FIR No.22/2018 which fact has not been made mention of in the grounds of detention though reference to said FIR has been made. Either detaining authority has been kept in dark or otherwise detaining authority has not applied its mind properly. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail is serious lapse which in turn gives rise to the inference that there is non-application of mind. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon'ble Apex Court in the case of "Anant Sakharam Raut v. State of Maharashtra and another" reported in AIR 1987 SC 137:-

"We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith......"

6) Next, it is further projected that when the detenue was already in custody, there was no need to direct his preventive detention. It has been stated in the grounds of detention that the detenue is involved in various criminal cases but despite that he has detained under preventives laws. The arrest of the detenue in connection with said FIR(s), at the time of passing of the order of detention, has not been disputed.

7) 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.

8) It is settled position of law 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"

9) Since the detenue was in the custody of the police at the time of passing of the order of detention, therefore, question arises for consideration whether an order of detention could be passed on the face of such an eventuality? The answer to this question is emphatically "No", taking into consideration the law laid down by the Hon'ble Apex Court in "Sama Aruna v. State of Telangana & Anr" (AIR 2017 SC 2662). Para 24 of the said judgment is apposite to be quoted herein below:

"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 2002-03. 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."

10) It shall 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."

11) Learned counsel for the petitioner next contended that the detaining authority has not applied its mind while passing the impugned order as the grounds of detention is the replica of the dossier which would show that the detaining authority has not applied its mind. When the grounds of detention is a copy of the dossier, that is enough for quashing the order of detention.

12) The ground projected, on perusal of the detention records, appears to have substance. On careful perusal of the dossier and the grounds of detention, what would emerge is that only word in each para has been changed i.e. in the dossier every para starts with "the subject" whereas in the grounds of detention every para starts with "you are residing" or "you have turned" likewise. Rest of the words are the ditto of the dossier. The formulation of grounds of detention on the basis of the material is a pre-condition for deriving satisfaction so as to order detention of a person. It appears that detaining authority has not adhered to the same and it appears that the concept of deriving satisfaction, in the instant case, has become a causality. In the judgment "Fiaz Ahmad through his Mother Atiqa Begum Vs. State of J&K & anr (2010(II) S. L. J. 872), wherein, while noticing the same position and while relying on the judgment captioned "Jai Singh & Ors. Vs. State of J&K" (AIR 1985 SC 764), it was held that there was no due application of mind by the detaining authority in passing the order of detention.

13) The detention record produced by the learned counsel for the respondents carries a copy of receipt of grounds of detention perusal of which shows that the grounds of detention have been read over to the detenue by one ASI Tariq Ahmad but no affidavit in support thereof has been filed which was required to be sworn by the said officer. Looking at the said ground from yet another angle, what can be said is that to eradicate all the doubts, it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach a semblance of fairness to his actions. Resort can, in this behalf, be had to the law laid down by the Apex Court of the country in the case of "State Legal Aid Committee, J&K Vs. State of J&K & others", reported in AIR 2005 SC 1270, wherein it has been held as under:

"Though several questions have been raised in this petition, it is not necessary to deal with them in detail as we find that there is no definite material to show that the requirements of Section 13 of the Jammu & Kashmir Public Safety Act, 1978, (in short the Act), requiring the grounds of order of detention to be disclosed/ communicated to the person affected by the order has been complied with. Though in the affidavit filed by the State, it has been stated that the contents of the warrants and grounds of detention were served, read over and explained to the assesse and he was informed about his right to make a representation against the detention, if he so desired, there is no material placed on record to substantiate this stand. It is stated in the affidavit that the detenue refused to receive copy of the detention order and also refused to put his signatures on the documents. The least the State could have done is to file an affidavit of the person who wanted to serve the relevant documents and an endorsement LPA (HC) 107/2017 10 of 16 to the effect that there was refusal. Even the name of the official has not been indicated in the affidavit. That would have been sufficient to comply with the requirements of Section 13 of the Act."

14) Para 5 of the judgment rendered in Chopan Vs. State and another" reported in to be quoted here-under:- the case of "Mohammad Shaban 2003(II) 455 shall be advantageous

"5. Thus the stand taken by the detaining authority is that ASI Gh. Ahmad explained the grounds of detention to the detenue in Urdu and Kashmiri. However, affidavit of said ASI has not been filed. I have perused the record made available by Learned Counsel for the respondents. In the record there is a photocopy of C/Certificate of said ASI to that effect when the Learned Counsel was asked to produce the original, he expressed his inability to do so. The un-authenticated photocopy does not deserve to be noticed. Therefore, neither there is affidavit of said ASI nor any reliable document available on record to substantiate the fact that ASI Ghulam Ahmad had actually explained the grounds of detention to the detenue in his own language. Bare statement of the detaining authority in this behalf is of no consequence as has been held by the Hon'ble Supreme Court in the above quoted authority. The detention order thus cannot be sustained being violative of mandate of law on the aforesaid ground alone."

15) Para 20 of judgment rendered in the case of "Lallubhai Jogibhai Patel vs Union Of India & Ors" reported in 1981 AIR 728 is advantageous to be quoted:

"20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word.

It means that sufficient knowledge of the basic facts constituting the 'grounds' should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the 'ground' to the detenu is to enable him to make a purposeful and effective representation. If the 'grounds' are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikishan v. State of Maharashtra: and Haribandhu Dass. v. District Magistrate (AIR 1969 SC 43) (ibid)."

16) Preventive laws have the effect of depriving a person of his liberty which is precious, however, deprivation thereof at times becomes indispensable. For justifying such deprivation, the safeguards as are provided by law are also required to be respected. A person who dares to threaten maintenance of public order has to be dealt with iron hand but the Constitutional safeguards as are available are also to be followed. The Article 21 of the constitution of India has protected the life and personal liberty of people by providing that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The word established is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. If a person is to be deprived of his life or liberty, the authority concerned is under a constitutional mandate to follow the procedure established by law, the procedure prescribed for depriving a person of his life or liberty has to be reasonable, fair and just. The protection contained in the article does not extend to only citizens but to all persons. The law providing for preventive detention has to be strictly construed keeping in view the delicate balance between social security and citizen freedom. Thus if the preventive detention has not been ordered in strict conformity with law authorizing detention, the detenue is entitled to be released.

17) Preventive detention, in effect, is an invasion to personal liberty which infringe the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, shall not be on the ipse dixit of the detaining authority. Preventive detention wherever permissible shall adhere to the procedural safeguards. Infraction of safeguards renders the order of detention unsustainable. The Hon'ble Supreme Court in catena of judgments has made it clear as to what is the value of the 'constitutional safeguard' and as to what is the value of right to liberty guaranteed under Article 21 of the Constitution of India. In this connection, it shall be quite relevant to quote paras 37 and 38 of the judgment rendered by a Bench of three Hon'ble Judges of the Hon'ble Apex Court in case captioned "Rekha Vs. State of Tamil Nadu and anr", reported in (2011) 5 SCC 244:

"37. As observed in Abdul Latif Abdul Wahab Sheikh v. B. K. Jha vide SCC para 5:(SCC p.27)

"5....The procedural requirements are the only safeguards available to a detenu 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."

As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee v. McGrath:(US p. 179)

"...It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law".

Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not devised to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society's assurances that the authorities will behave properly within rules distilled from long centuries of concrete experience".

18) Keeping in view the hallmark of the cherished right to liberty in keeping with the object of Article 21 of the Constitution of India, while exercising power to order preventive detention, various procedural and other safeguards available have to be respected and adhered to. It is the bounden duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If record suggests that there is non-application of mind, that ipso facto means that subjective satisfaction is missing.

19) The cumulative effect of the aforesaid discussion leads to the only conclusion i.e. the order of detention impugned bearing No. DMS/PSA/20/ 2018 dated 05.09.2018 passed by respondent No.2-District Magistrate, Srinagar is not valid, as such, 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 case registered against him.

20) The record, as produced, be returned to the learned counsel for the respondents.