Naseer Ahmad Dar vs Government Of J&K And Ors
2021 Latest Caselaw 864 j&K/2

Citation : 2021 Latest Caselaw 864 j&K/2
Judgement Date : 6 August, 2021

Jammu & Kashmir High Court - Srinagar Bench

Naseer Ahmad Dar vs Government Of J&K And Ors on 6 August, 2021

    HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                    AT SRINAGAR

                                                 Reserved on : 05.08.2021
                                                 Pronounced on : 06.08.2021

                             WP (Crl) No. 201/2020

Naseer Ahmad Dar

                                                          ...Petitioner(s)

                   Through: Mr. Nisar Ahmad Bhat, Adv.

                                   V/s

Government of J&K And Ors.
                                                         ...Respondent(s)

                   Through: Mr. Mir Suhail, AAG.


Coram:HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

                                    JUDGMENT

1. In the present Habeas Corpus Petition, petitioner-detenue

challenges the order of detention bearing No.32/DMP/PSA/20

dated 28.10.2020 passed by District Magistrate, Pulwama,

whereby the said District Magistrate, in exercise of powers vested

in him under Section 8 of Jammu and Kashmir Public Safety Act,

1978 (for short "Act of 1978"), has ordered the detention of the

petitioner with a view to prevent him from acting in any manner

prejudicial to the security of the State.

2. Although a number of grounds have been taken in this petition, yet

the main ground, on which the order impugned is sought to be

challenged is that, the same suffers from non-application of mind

on the part of detaining authority inasmuch as on the date of

passing of the detention order, petitioner was already in custody in

connection with FIR No. 36/2020 registered with Police Station,

Pulwama.

3. It was urged that the learned trial court had granted bail to the

petitioner vide order dated 07.10.2020 but was not released and

continued to remain in custody, by which time respondents

proceeded to pass the order of detention.

A specific averment in this regard was made by the

petitioner in sub-para-'d' of Paragraph-4 of the writ petition,

which has not been specifically denied in the objections filed by

the respondents.

4. On a perusal of the grounds of detention, it can be seen that

District Magistrate, Pulwama did not at all reflect any knowledge

regarding the fact that the petitioner was already under arrest and

had been ordered to be released on bail necessitating issuance of

the order of detention.

5. The Apex court in Binod Singh vs. District Magistrate

Dhanbad, (1986) 4 SCC 416 held that if a person was in custody

and there was no imminent possibility of his being released

therefrom, the power of detention should not ordinarily be

exercised. It was further held that there must be cogent materials

before the officer passing the order of detention that the detenue

was likely to be released on bail. The inference must be drawn

from the available material on record and must not be the ipse dixit

of the officer passing the order of detention......"

6. In Surya Prakash Sharma vs. State of U.P reported in 1994 Supp (3) 195, the Apex court in paragraph-5 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 first came up for consideration before a Constitution Bench in "Rameshwar Shaw v. District Magistrate, Burdwan. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand 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 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 detenu is already in detention; and (ii) there were 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 detenu is likely to be released from 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."

7. In Amritlal and others vs. Union Government through

Secretary, Ministry of Finance and others, AIR 2000 SC 3675,

the Apex Court was dealing with an order of detention passed

under the Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988 where the detaining authority

had recorded a satisfaction to the extent that even though

prosecution proceedings under NDPS Act, 1985 had been initiated

against the petitioner, he was satisfied that there was every

likelihood of his moving an application for bail and in the event of

his being granted bail, there was a likelihood of his indulging in

illicit traffic in narcotic drugs and thus detained him under the

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988.

8. The Apex Court in Amritlal's case (supra), however, held that the

reasoning given by the detaining authority was not sufficient

compliance with the requirements of law and that the 'likelihood of

his moving an application for bail' was different from 'likelihood

to be released on bail'. What the Apex Court held in Judgment

supra is reproduced hereunder:

"6. The requirement as noticed above in Binod Singh‟s case (AIR 1986 SC 2090: 1986 Cri LJ (supra) that there is „likelihood of the petitioners being released on bail‟ that however is not available in the reasonings as provided by the concerned officer. The reasoning available is the „likelihood of his moving an application for bail‟ which is different from „likelihood to be released on bail‟. This reasoning in our view is not sufficient with the requirements as laid down."

"7. The emphasis however, in Binod Singh‟s case (supra) that before passing the detention order the concerned authority must satisfy himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material. Available

cogent material is the likelihood of having a bail application moved in the matter but not obtaining a bail order."

9. Respondents having not specifically rebutted the averment with regard

to the petitioner-detenue being already in custody despite the order of

bail in connection with FIR No. 36/2020, this averment must be deemed

to be correct and, therefore, in that background order of detention can

clearly be stated to be suffering from non-application of mind on the

part of District Magistrate, Pulwama.

10. The order impugned bearing No. No.32/DMP/PSA/20 dated

28.10.2020 passed by District Magistrate, Pulwama, is, accordingly

quashed and the petitioner-detenue is directed to be released if not

otherwise required in any other case.