HCP/2/2019 of ADIL HUSSAIN MALLA Vs STATE OF J AND K AND ANR. (HOME DEPARTMENT) on 31 December 2019

JUDGEMENT

1. Impugned in this petition is the Order no.149/DMS/PSA/19 dated 24.12.2018, passed by the District Magistrate, Shopian (for short “detaining authority”), placing one Adil Hussain Malla son of Shakeel Ahmad Malla resident of Maldeera Zainapora, Shopian (for brevity “detenu”) under the preventive detention to prevent him from acting in any manner prejudicial to the security of the State.

2. Counter affidavit has been filed by respondents, vehemently resisting the petition. The detention record has also been produced by the learned counsel for the respondents to substantiate the averments made in the reply affidavit.

3. Learned counsel for the petitioner states that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention on such grounds is unjustified and unreasonable. The next submission of the learned counsel for the petitioner is that the detenu, at the time of passing of impugned order of detention, was in custody in connection with case FIR no.25/2018 and the detenu had neither applied for bail in that case nor was bail otherwise granted to him. Nevertheless, the detenu has been placed under preventive detention in terms of impugned order of detention. The detaining authority is said to have spelled out no compelling reason to pass the order of preventive detention against detenu. Learned counsel for petitioner also states that detenu was not provided the relevant material relied upon by the detaining authority for arriving at subjective satisfaction and as a result whereof, detenu was prevented from making an effective representation and that this in itself amounts to infraction of provisions of Section 13 of J&K Public Safety Act, 1978, read with Article 22(5) of the Constitution of India. To bolster his case, learned counsel for petitioner has placed reliance on Anant Sakharam Raut v. State of Maharashtra and another, AIR 1987 SC 137.

4. Per contra, learned counsel appearing for respondents states that in view of activities mentioned in the grounds of detention, detaining authority had no option but to order the detention of detenu. Learned counsel also submits that requisite material has been supplied to the detenu but he has not filed representation against his detention, so none of his constitutional rights stand violated. Learned counsel further submits that detenu’s activities in fact warrant for his detention.

5. In the backdrop of the case set up coupled with the submissions made by the learned counsel for the parties, it is to say that whether a person, who is in jail, can be detained under preventive detention law has been a subject matter of consideration before the Supreme Court very often. In Dharmendra SuganchandChelawat&anr v. Union of India, AIR 1990 SC 1196, the Supreme Court while considering the same issue reconsidered its earlier judgments on the point rendered in the cases of Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334; Masood Alam v. Union of India, AIR 1973 SC 897; Dulal Roy v. District Magistrate, Burdwan, AIR 1975 SC 1508; AlijanMian v. District Magistrate, Dhanbad, AIR 1983 SC 1130; Ramesh Yadav v. District Magistrate, Etah, AIR1986 SC 315; Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177; Binod Singh v. District Magistrate, Dhanbad, AIR 1986 SC 2090; Smt Shashi Aggarwal v. State of U.P., AIR 1988 SC 596, and came to the conclusion that an order for detention 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 detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu was 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 whereof it may be satisfied that (a) the detenu is likely to be released from the custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, 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.

6. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. The grounds of detention do not mention that the detaining authority is aware of the fact that the detenu had already been released on bail by the court of competent jurisdiction at the time of making the order of detention. I find that in the present case the detaining authority has not drawn subjective satisfaction about the detention of the detenu. There is no mention of the fact that the detenu has applied for bail in the criminal case against him nor is there any satisfaction that detenu has been enlarged on bail. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention. In that view of matter, the impugned detention order is vitiated.

7. I have gone through the detention record, produced by the learned counsel for respondents, so as to ascertain as to whether the material, relied upon by detaining authority while issuing impugned detention order, has been furnished to detenu or not. The detention record, inter alia, contains “Receipt of Grounds of Detention”, acknowledged by detenu, and “Execution Report” of the detention. A perusal of “Execution Report”, of detention order signed by Executing Officer, SI Mohammad Akber No.79/KP (EXK.791454) DPL Shopian, as also by the Taken-over Officer, viz. Dy. Superintendent, District Jail, Kathua, reveals that only 07 leaves have been given to detenu. For quick reference, relevant extract of “Execution Report” is reproduced hereunder:

“Execution Report as on 28.12.2018

…The contents of detention warrant and grounds of detention (07) leaves have been read over to the above said detenue in English and explained in Urdu &Gojri languages whichhe fully understood and accordingly Copy of detention warrant and copy of grounds of detention (07) leaves have been provided to him for making representation …….

The said detenue along-with relevant documents i.e. Copy of detention order, letter addressed to the detenue and copy of grounds of detention (07) leaves have been handed over to the jail authorities of District Kathua on 29.12.2018 against proper receipt for further lodgement and further handing over to the said detenue under proper receipt U/R. The said detenue has been also informed that he can make representation to the Government against the order of detention if he so desire.”

8. From the above quoted extract of the “Execution Report”, it comes to fore that detenu has not been furnished the material, viz. copies of FIRs; Dossier; copy of site plan; copy of seizure memos; copy of arrest memo; statement of witnesses; and other related documents, at the time of execution of detention order or immediately thereafter. Same is true about Receipt of Grounds of Detention.

Bare reading of impugned detention order reveals that Senior Superintendent of Police, Shopian, vide his letter no.CS/D-1/2018-10876 dated 18.12.2018, produced material record, such as dossier and other connected documents in respect of detenu and it was only after perusal thereof that impugned detention order has been issued by detaining authority. Grounds of detention make reference of cases, FIR nos.36/2017, 37/2017, 25/2018, 55/2018 and 250/2018, to have been registered against detenu. The involvement of the detenu in the aforesaid cases appears to have weighed with the detaining authority, while making the detention order. The record, as noted above,

does not indicate that the copies of the aforesaid First Information Reports, the statements recorded under Section 161 Cr.P.C. and other material collected in connection with the investigation of the aforesaid cases, were ever supplied to the detenu. The abovementioned material, thus, assumes significance in the facts and circumstances of the case. It needs no emphasis, that the detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to the detenu. It is only after the detenu has all the said material available that he can make an effort to convince the detaining authority and thereafter the Government that their apprehensions concerning the activities of the detenu are baseless and misplaced. If the detenu is not supplied the material, on which the detention order is based, he will not be in a position to make an effective representation against his detention order. The failure on the part of the detaining authority to supply the material relied at the time of making the detention order to the detenu, renders the detention order illegal and unsustainable. While saying so, I draw the support from the law laid down in ThahiraHaris Etc. Etc. v. Government of Karnataka AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008 Cr. L. J. 4567; DhannajoyDass v. District Magistrate AIR 1982 SC 1315; Sofia GulamMohdBham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed AasiyaIndrabi v. State of J&K &ors, 2009 (I) S.L.J 219.

9. It is pertinent to mention here that the preventive detention is not a quick alternative to normal legal process, is the saying of the Supreme Court in the case of V. Shantha v. State of Telangana &ors,AIR 2017 SC 2625. The Supreme Court has held that preventive detention of a person by a State after branding him a ‘goonda’ merely because the normal legal process is ineffective and time-consuming in ‘curbing the evil he spreads’, is illegal and that the detention of a person is a serious matter affecting the liberty of the citizen. Preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws, the Supreme Court observed. Recourse to the normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities, affecting security of the State, and that there was no other option except invoking the provisions of the preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted. The

preventive detention involves the detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating the crimes which the detenu may have committed. After all, the preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. My views are fortified by the judgements rendered in Rekha v. State of Tamil Nadu & another (2011) 5 SCC 244and V. Shantha v. State of Telangana (supra) and Sama Aruna v. State of Telengana AIR 2017 SC 2662.

10. The counsel appearing for petitioner has raised several questions, touching upon the validity and sustainability of the detention order. However, I am of the view that all these questions may be of some academic importance but their determination is not necessary for disposal of this petition. The impugned order, as held above, is not sustainable in law for the reasons indicated above.

11. For the foregoing reasons, this petition is disposed of and detention Order no.149/DMS/PSA/19 dated 24.12.2018, passed by District Magistrate, Shopian, is quashed. Respondents are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.

12. Detention record be returned to learned counsel for respondents.

Srinagar31.12.2019 Ajaz Ahmad, PS

(Sanjeev Kumar) Judge

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No.