HCP/29/2008 of MOHAMMAD TAJ Vs STATE TH.HOME DEPTT.AND ORS. on 30 December 2008

Coram:

MR. JUSTICE J.P.SI GH, JUDGE.

Mohammad Taj has filed this petition through his brother Mohammad Zaman seeking quashing of District Magistrate, Jammu’s order No. 16/PSA of 2007 dated 21.11.2007 passed under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 to prevent him from indulging in activities prejudicial to the security of State.

His Counsel, Mr. Rajneesh Oswal submits that petitioner was on bail in FIR no. 62/2007 registered under Sections 4/5 ESA and 7/25 Arms Act at Police Station, Channi Himmat, Jammu, when without there being any material on records justifying his detention under preventive custody, he was erroneously ordered to be detained by District Magistrate, Jammu. He questions District Magistrate’s order on yet another ground that the detention order issued on 21.11.2007 was executed only on 3[rd] March, 2008 which proved that there was no proximate link between the grounds of detention and purpose therefor.

Mr. V. K. Chopra, learned AAG, on the other hand, submitted that in view of the nature of activities of the petitioner, the District Magistrate was justified in directing his preventive detention as the petitioner was likely to indulge in activities prejudicial to the Security of State. Learned counsel submitted that delay in execution of the detention order would not affect legality of petitioner’s detention, in that, detention order could be executed at any time, the detaining authority so desired.

I have considered the submissions of learned counsel for the parties.

Petitioner’s specific plea appearing in paragraph No. 7 (F) of his petition that delay of 101 days in executing the detention order, when the petitioner had not absconded, would render his detention illegal, has not at all been adverted to by the District Magistrate in the counter affidavit filed in answer to the petitioner’s petition. Records produced by learned State counsel too do not indicate as to why the detention order issued on 21.11.2007 had not been executed for more than three months.

Inaction of the respondents and that too without any explanation, as to why the detention order issued in November, 2007 had remained unexecuted till March 2008 demonstrates passing of detention order in a routine manner. Had the detaining authority intended to prevent any such activity of the petitioner, which would have been prejudicial to the security of State, there would not have been any remissness on behalf of the District Magistrate and the law enforcing agencies, in executing the detention order, particularly when the petitioner is not stated by the State respondents to have been absconding. Apprehension gathered by the learned District Magistrate, as it so appears in the grounds of detention, that the petitioner, though on bail, would continue to work for terrorists thus appears to be misconceived because had it been so, the detention warrant should have been executed without any loss of time.

In the absence of any explanation by the District Magistrate and the law enforcing agencies as to why the detention order had not been executed for more than three months, coupled with respondents omission to take recourse to the provisions of Section 12 of the Public Safety Act which provides for invoking provisions of Sections 87, 88 and 89 of the Code of Criminal Procedure in case of absconding persons, I am constrained to hold that the apprehension of learned District Magistrate that petitioner would indulge in activities prejudicial to the security of State, was unfounded.

That apart, the detention records do not contain any such material, on the basis whereof, it may be said that the petitioner, who was on bail, was likely to indulge in activities prejudicial to the security of State.

State counsel’s submission that detention order once issued could be executed at any time and that too at the discretion of the State Agencies, is utterly misconceived, in that, for exercising jurisdiction under Section 8 of the Jammu and Kashmir Public Safety Act, live and proximate link between the grounds of detention and purpose therefor must exist. Delay in execution of the detention warrant snaps this link thereby disabling the detaining authority to curtail one’s liberty at a belated stage. Such a disability would not, however, apply in a case where the detenue had been responsible for avoiding execution of detention warrant. No such case of avoidance of execution of detention warrant, by the detenue, has, however, been projected by the State authorities. Mr. Chopra’s submission thus fails and is, accordingly, rejected.

Non-execution of detention order issued in respect of the petitioner for over a period of three months without any explanation therefor renders petitioner’s detention unsustain-able.

Grounds of detention on which petitioner has been detained, too do not indicate any such activity of the petitioner, after his release on bail by learned 2[nd] Additional Sessions Judge, Jammu in FIR no. 62/07 on 16.11.2007 on the basis whereof impugned detention order may be justified.

In this view of the matter, petitioner’s detention in preventive custody on grounds similar to those which had appeared in FIR no. 62/2007, in which he had been released on bail, cannot be justified.

For all what has been said above, it is, therefore, established that the learned District Magistrate had no material before him, on the basis whereof, satisfaction in terms of Section 8 of the Jammu and Kashmir Public Safety Act, 1978 could be recorded that the petitioner was likely to indulge in activities prejudicial to the security of State. Order passed by learned District Magistrate thus lacks application of mind.

I am, therefore, of the opinion that the detention order issued by District Magistrate, Jammu for the detention of petitioner suffers from non-application of mind and is even otherwise unjustified for the reasons mentioned hereinabove.

Allowing this petition, District Magistrate, Jammu’s detention Order no. 16/PSA of 2007 dated 21.11.2007 is accordingly quashed. A direction shall accordingly issue to the respondents to set the petitioner to liberty, if not required in any other case.

Detention records to be returned to the learned State Counsel.

Jammu. 30.12.2008: Tilak, Secy.

(J. P. Singh) Judge