Shabir Ahmad Parray vs Ut Of J&K&Another
2021 Latest Caselaw 1714 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                  LADAKHAT SRINAGAR


                                              Reserved on: 20.10.2021
                                              Pronounced on:31.12.2021


                          WP(Crl) No.158/2020

SHABIR AHMAD PARRAY                    ...PETITIONER(S)

             Through: - Mr. Wajid Haseeb, Advocate.

Vs.

UT OF J&K&ANOTHER                            ...RESPONDENT(S)

             Through: - Mr. Mir Suhail, AAG


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1) Impugned in this petition is the detention order bearing

No.19/DMP/PSA/20 dated 13.07.2020, passed by District Magistrate,

Pulwama (respondent No.2) whereby petitioner has been taken into

preventive custody with a view to prevent him from acting in any

manner prejudicial to the security of the State. The said order has been

passed by respondent No.2 in exercise of his powers under Section 8

of the Jammu & Kashmir Public Safety Act, 1978.

2) The petitioner has challenged the impugned order of detention

on the grounds that at the time when the impugned order of detention

was passed, he was already in custody in connection with FIR

No.18/2020 for offences under Section 18, 19, 20 and 39 UL A (P) Act

of Police Station, Khrew, and, as such, there were no compelling

reasons for the detaining authority to pass the detention order. It is

further contended that the material forming basis of the grounds of

detention in the form of copy of FIR, copy of dossier, copies of

statements of witnesses recorded under Section 161 Cr.P.C have not

been supplied to the detenue thereby curtailing his right to make an

effective representation against impugned order of detention. Lastly, it

has been contended that the grounds of detention are replica of the

police dossier which clearly establishes that there is non-application

of mind on the part of detaining authority while passing the impugned

order of detention.

3) Respondent No. 2 (District Magistrate, Pulwama) has filed

counter affidavit on behalf of the respondents. In the said affidavit

respondents have submitted that they have followed all the

constitutional and statutory safeguards while passing the impugned

order of detention. It is contended that the activities of the detenue

have been found prejudicial to the security of the State and, as such,

the detaining authority with a view to prevent him from acting in any

manner prejudicial to the security of the state was compelled to pass

the impugned order of detention. Respondents have submitted that all

material which formed basis of the impugned detention order and the

grounds of detention were furnished to the detenue and that the

detaining authority has applied its mind while passing the impugned

order of detention. To support its contentions, the detaining authority

has produced the detention record.

4) I have heard learned counsel for the parties and perused the

record.

5) The first contention that has been raised by the petitioner is that

there were no compelling circumstances for the detaining authority to

pass the impugned order of detention when the detenue was already in

custody in connection with case FIR No.18/2020.

6) It is trite that the preventive detention orders can be passed even

when a person is in police custody or involved in a criminal case but

for doing so, compelling reasons are to be recorded. The Detaining

Authority is bound to record the compelling reasons as to why the

detenue could not be deterred from indulging in subversive activities

by resorting to normal law and in the absence of these reasons, the

order of detention becomes unsustainable in law. I am supported in

my aforesaid view by the judgments of the Supreme Court in the cases

of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri)

1691 and T. P. Moideen Koya vs. Government of Kerala and ors.

reported in 2004 (8) SCC 106.

7) Adverting to the facts of the instant case, as per the detention

record, FIR No.18/2018 for offences under Sections 18, 19, 20 and 39 of

ULA(P) was registered against the detenue in Police Station, Khrew

and he was taken into custody in connection with investigation of the

said case on 12.05.2020. Excepting the aforesaid FIR, there is no

material on record to even remotely show that it was absolutely

necessary for the Detaining Authority to detain the petitioner under

the provisions of the Jammu and Kashmir Public Safety Act.

8) In the grounds of detention, after referring to the contents of the

aforesaid FIR, it has been mentioned that these activities of the

detenue are prejudicial to the security of the State and being highly

motivated to carry on the illegal designs he is not likely to desist from

indulging in antinational and anti-social activities. However, the

Detaining Authority has not brought on record any other cogent

material or furnished any other cogent ground to show that the

detenue is not likely to desist from the aforesaid activities. It appears

that the satisfaction of the Detention is solely based on the allegations

made in the aforesaid FIR and no other material.

9) As already noted, the Supreme Court in a catena of judgments

has clearly held that unless there are compelling circumstances and

cogent material before the Detaining Authority for passing a detention

order against a person who is already in custody or is facing criminal

prosecution in a substantive offence, the Detaining Authority cannot

pass an order of detention against such a person.

10) From the perusal of material/record before me, it is clear that

the detenue has been shown involved in a substantive offence. When

it is so, the Detaining Authority was bound to record the compelling

reasons as to why the detenue could not be deterred from indulging in

subversive activities by resorting to normal law and, as already

discussed, there is no such material on record. The impugned order of

detention, therefore, cannot be sustained.

11) The other ground that has been urged by the petitioner is that

whole of the material which formed the basis of grounds of detention

was not furnished to him thereby curtailing his right to make a

representation against to the impugned order of detention. The ground

projected in this regard appears to have force as the respondents have

not brought anything on record to negate the submission of the

petitioner. The execution report indicates that the detenue has been

provided copy of the detention order and dossier. There is no mention

of furnishing of other material like grounds of detention, FIR

including the documents relating to the FIR, which is the basis of the

grounds of detention. In the absence of the material on the basis of

which grounds of detention have been formulated, the detenue has

been rendered handicapped and hampered in making an effective

representation against the order of detention. The violation of this

vital safeguard by the respondents renders the impugned order of

detention unsustainable in law.

12) Viewed thus, the petition is allowed and the detention order

No.19/DMP/PSA/20 dated 13.07.2020, passed by the District

Magistrate, Pulwama-respondent no.2 directing the detention of the

detenue, is quashed. Respondents are directed to release the detenue

from the preventive detention forthwith, provided he is not required in

connection with any other case.

13) The detention record be returned back to the learned counsel for

the respondents.

(Sanjay Dhar) Judge

SRINAGAR 31.12.2021 "Bhat Altaf, PS"

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




MOHAMMAD ALTAF BHAT
2021.12.31 14:46
I attest to the accuracy and
integrity of this document