Showkat Ahmad Mir vs Union Territory Of J&K And Another
2021 Latest Caselaw 106 j&K/2

               HIGH COURT OF JAMMU AND KASHMIR
                          AT SRINAGAR
                                (Through Video Conference)

                                                          Reserved on:    21.12.2020
                                                          Pronounced on : 12.02.2021


                                                           WP(Crl.) No. 616/2019


Showkat Ahmad Mir                                          ...Petitioner/Applicant(s)

                  Through :-     Mr. Hussain Rashid, Advocate

                v/s
                  <




Union Territory of J&K and another
't
                                                                   .....Respondent (s)

                  Through :- Mr. Asif Maqbool, Dy. A.G.
Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                      (through Video Conference from residence in Jammu)

                                      JUDGMENT

1. The present petition has been filed by the father of the petitioner on

behalf of the petitioner for quashing order of detention bearing No.

75/DMB/PSA/2019 dated 21.10.2019 issued by the District Magistrate, Baramulla,

respondent No. 2 herein by virtue of which the petitioner has been ordered to be

detained under the Jammu and Kashmir Public Safety Act, 1978 (for short the Act)

in order to prevent him from acting in any manner in the activities, which are

prejudicial to the maintenance of security of the State.

2. It is stated in the petition that the petitioner was arrested on

04.09.2019 by the Police Station, Sopore in a false and frivolous case in

connection with FIR bearing No. 33/2019 registered with Police Station, Bomai for

commission of offences under sections 307 RPC and 7/27 Arms Act and during

continuation of his arrest in the aforesaid FIR, the petitioner was taken into

preventive detention vide order of detention dated 21.10.2019 (supra). The

petitioner has challenged the order of detention on the ground that the same is

illegal, baseless and the detaining authority has not followed the constitutional as

well as statutory norms as provided under Article 22(5) of the Constitution of India

as well as section 13 of the Act while passing the order of detention. It is further

submitted that the petitioner has read up to 8th class and he is shopkeeper by

professor and has never indulged in any activities, which are prejudicial to the

security of the State and the allegations shown in the grounds of detention are false

and frivolous. It is further contended that the petitioner has not been provided any

material on the basis of which the detaining authority has passed the order of

detention and as a result of which, the petitioner could not made any purposeful

representation to the Government against his preventive detention. It is also

submitted that the petitione3r was already in custody in connection with FIR

33/2019 and the detaining authority has nowhere recorded any compelling reasons

while ordering the preventive detention of the petitioner.

3. The respondents have filed the counter affidavit, in which they have

categorically stated that the procedural as well as statutory requirements under

Article 22(5) of the Constitution of India as well as section 13 of the Act have been

complied with by the respondents while passing the detention order. They have

further stated that all the requisite documents were provided to the petitioner.

4. Mr. Hussain Rashid, learned counsel for the petitioner has vehemently

reiterated the same grounds those have been taken in his petition. It is submitted by

the learned counsel for the petitioner that one of the co-accused in FIR No.

33/2019 (supra) was also detained under preventive detention and his detention

order was quashed by the Coordinate Bench of this Court in WP (Crl) No.

623/2019.

5. On the contrary, Mr. Asif Maqbool, learned Deputy Advocate General

appearing for the respondents has vehemently argued that all the documents have

been furnished to the petitioner. Mr. Maqbool has also argued that the detention

order is legal and all constitutional safeguards have been complied with while

passing the order of detention. Mr. Maqbool has also produced the scanned

detention record.

6. A perusal of the grounds of detention reveals that the petitioner is

involved in FIR No. 8/2017 for commission of offences under sections 10 and 13

of ULA(P) Act registered with Police Station, Bumai, FIR No. 63/2016 under

sections 307, 332, 353, 341, 336, 427, 147, 148 and 149 registered with Police

Station, Bumai, FIR No. 83/2017 under Section 13 of ULA(P) Act of Police

Station, Bumai and FIR No. 220/2019 under sections 13, 18 and 20 ULA(P) Act

and 120-B and 506 RPC of Police Station, Sopore. Besides, the petitioner has also

been involved in FIRs bearing No. 33/2019 for commission of offences under

sections 307 RPC and 7/27 Arms Act of Police Station, Bumai as well as FIR No.

233/2019 for commission of offences under sections 307 RPC and 7/27 Arms Act

of Police Station, Sopore. It is evident in the grounds of detention that the

detaining authority has shown its awareness about the custody of the petitioner in

FIR No. 33/2019 (supra). It is also stated in the grounds of detention that there is

likelihood of the petitioner being admitted to bail.

7. One of the star grounds of the petitioner is that the petitioner was

already in custody in connection with FIR No. 33/2019 in Police Station, Bumai

and the detaining authority has not divulged any compelling reasons so as to

necessitate the detention of the petitioner under the Act except by simply stating

there is likelihood of the petitioner being released on bail. Learned counsel for the

petitioner has argued that no reference to any bail application has been made in the

grounds of detention as to whether the petitioner had filed any bail application

before the competent court or not. It is vehemently argued that there was no

material before the detaining authority so as to state in the grounds of detention

that there is possibility of the petitioner being enlarged on bail. Learned counsel

for the petitioner has relied upon the judgment of the Apex Court in Rekha v. State

of Tamil Nadu (2011) 5 SCC 244, in which it has been held:

"27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."

8. Reliance has also been placed upon the judgment of the Supreme

Court in "Sama Aruna vs State of Talengana" reported in 2018(12) SCC 150.

Paragraph No. 27 is extracted here under:

27. 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 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail.

9. In the order of detention, there is no whisper as to on which basis the

respondent No. 2 has derived his satisfaction that it has become necessary to detain

the petitioner when he was already in custody, particularly when no bail

application was filed by the petitioner. More so, it is evident that the grounds of

detention are the verbatim reproduction of dossier prepared by respondent No. 3.

The detaining authority was required to apply its mind independently with regard

to the material placed before it so as to derive its satisfaction that it has become

necessary to detain the petitioner. But the same has not been done in the instant

case. This renders the detention order illegal. Reliance is placed on the decision of

Apex Court in case, titled, Jai Singh v. State of J & K, reported in (1985) 1 SCC

561 and the relevant portion is reproduced s under:

"-------First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is

given as Village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, s/o Ram Singh, resident of Village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof of non- application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner." (Emphasis Supplied)

10. Since the order of detention is required to be quashed on these

grounds only, so there is no need to consider the other grounds of challenge.

11. In view of the above, this petition is allowed. Detention order No.

75/DMB/PSA/2019 dated 21.10.2019 is quashed. The petitioner (detenue) be set

free from the preventive custody, provided he is not required in any other case.

(RAJNESH OSWAL) JUDGE JAMMU 12.02.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No