Mudasir Ahmad Sheikh vs Ut Of J&K And Another
2022 Latest Caselaw 69 j&K/2

                                                                  Sr. No. 98

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT SRINAGAR
                      (Through Virtual Mode)


                                            WP (Crl) No. 90/2021


 Mudasir Ahmad Sheikh                             .....Appellant(s)/Petitioner(s)



                       Through: Mr. Wajid M. Haseeb, Adv.


                  Vs


 UT of J&K and another                                      ..... Respondent(s)


                       Through: Ms. Asifa Padroo, AAG.


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


                                  ORDER

11.02.2022

1. In this Habeas Corpus petition, the petitioner challenges the order of detention dated 12.6.2021 whereby the District Magistrate, Srinagar in exercise of the powers vested in him under Section 8 of the 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 maintenance of public order.

2. One of the main grounds of challenge to the order of detention was that the same suffered from total non-application of mind inasmuch as on the date of passing of the order of detention, the petitioner had already been arrested under FIR No. 138/2021 for offences under Section 147, 148, 149, 336, 427, 341, 188 and 269 IPC of Police Station, Parimpora.

3. It was urged that the detenue had not filed any bail application in the aforementioned case before any court and that in those circumstances, there was no occasion for the District Magistrate to issue the order of detention.

4. In reply affidavit filed by the State, a general stand has been taken that the order of detention was issued by the District Magistrate in strict compliance of the provisions of the Act of 1978 and further that the grounds of detention had also been explained and read-over to the detenue in the language which he fully understood.

5. It is further stated that the material was also supplied to him on the basis whereof the grounds of detention was framed and that there was no non-application of mind on behalf of the District Magistrate while issuing the order.

6. In ground 4 of the writ petition, learned counsel for the petitioner has specifically raised an issue with regard to non-application of mind on the part of the detaining authority by highlighting the fact that even when the petitioner was under arrest in FIR No. 138/2021, the detaining authority had failed to explain any compelling reasons, which compelled the detaining authority to pass the order of detention. No specific reply has been filed by the official respondents to this particular ground in the writ petition although in the grounds of detention, the petitioner was shown to have been arrested not in FIR No. 138/2021 but in FIR No. 82/2016.

7. 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......"

8. 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 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."

9. 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.

10. 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."

11. The respondents have not produced any cogent material, which would show reasons to justify the detention of the petitioner even when he was already in custody on the date of the passing of the order impugned.

12. Keeping in view the principles of law aforementioned, the order of detention can clearly be stated to be suffering from non-application of mind on the part of the District Magistrate. The order impugned dated 12.6.2021, therefore, is legally untenable and is accordingly quashed. The petitioner is directed to be released forthwith, if not required in any other case. Needless to say that the official respondents would be at liberty to proceed afresh in case the circumstances are such as satisfy the District Magistrate to invoke the provisions of the Jammu and

Kashmir Public Safety Act, 1978, which should, however, be done strictly in accordance with the provisions of the said Act after due application of mind.

13. The detention record, if any, be returned to the learned counsel for the respondents against proper receipt.

(Dhiraj Singh Thakur) Judge Srinagar 11.02.2022 Naresh