Jammu & Kashmir High Court

Salman Sajjad Age 30 Years vs Union Territory Of Jammu & Kashmir on 17 October, 2023

                                                                Sr. No. 02


    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT JAMMU


Case:-    WP(Crl) No. 12/2023
          CrlM No. 1759/2023

Salman Sajjad Age 30 years,                      .....Appellant(s)/Petitioner(s)
S/o Sh. Sajjad Hussain,
R/o Umar Mohalla, Kishtwar,
Tehsil & District Kishtwar,
Presently lodged in District Jail, Kishtwar
through his father
Sajjad Hussain, Age 55 years,
S/o Sh. Abdul Rashid,
R/o Umar Mohalla, Kishtwar,
Tehsil & District Kishtwar.

                       Through: Mr. Syed Majid Shah, Advocate

                 Vs

1. Union Territory of Jammu & Kashmir                      ..... Respondent(s)
   through its Financial Commissioner (Home),
   Civil Secretariat, Jammu.

2. Divisional Commissioner, Jammu.

3. Senior Superintendent of Police, Kishtwar.

                       Through: Mr. Mohd. Irfan Inqlabi, GA
                                Ms. Priyanka Bhat, Advocate vice
                                Mrs. Monika Kohli, Sr. AAG

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                    ORDER

17.10.2023

(Oral)

01. In the instant petition filed under Article 226 of the

Constitution of India, the petitioner herein has sought quashment of

order of detention bearing No. PITNDPS 31 of 2022 dated

21.10.2022 (for short, 'the impugned order'), whereunder the

CrlM No. 1759/2023

petitioner came to be detained under the provisions of the Jammu &

Kashmir Public Safety Act, 1978 (for short, 'the Act of 1978').

02. The impugned order has been challenged by the petitioner

on the grounds urged in the petition.

03. Counter to the petition has been filed by the respondents,

opposing and controverting the contentions raises and grounds

urged in the petition.

Heard learned counsel for the parties and perused the

record.

04. According to the learned counsel for the petitioner, the

detaining authority did not indicate any compelling reasons either in

the grounds of detention or in the order of detention necessitating

the detention of the detenue. Learned counsel for the petitioner

would further contend that the detenue though prior to his

detention was implicated in FIR No. 275/2021 dated 21.12.2021

registered with Police Station Kishtwar and FIR No. 178/2022 dated

22.07.2022 registered with the Police Station Kishtwar, however,

had been bailed out on 24.02.2022 and 01.08.2022 respectively, yet

the detaining authority has shown unawareness about the same

while detaining the detenue suggesting complete non-application of

mind on the part of the detaining authority.

Learned counsel for the petitioner would thus insist that

the detention order is not legally sustainable.

CrlM No. 1759/2023

05. On the contrary, learned counsel for the respondents while

rebutting the contentions of the learned counsel for the petitioner

would contend that the preventive detention in law is not intended

as a punitive measure, but is preventive in nature and a detenue

can be detained under the provisions of the Act of 1977 with a view

to prevent a person from acting in any manner prejudicial to the

conditions enumerated in Section 8 of the Act of 1978 in future.

Learned counsel would further submit that the detenue was

detained on account of being a habitual offender in commission of

offences against the public being a drug smuggler and that the

detenue even after granting bail in the FIRs in question continued to

indulge in the drug related activities necessitating his detention.

06. Insofar as, the grounds urged by the learned counsel for

the petitioner, that the detaining authority did not indicate any

compelling reasons for detaining the detenue either in the order or

in the grounds of detention is concerned, it transpires from the

perusal of the grounds of detention as also the order of detention

that there is substance in the submissions made by the learned

counsel for the petitioner. Indisputably, the detaining authority has

not indicated any compelling reasons either in the grounds or in the

order of detention necessitating the detention of the detenue,

somuch so, the detaining authority has shown its complete

unawareness about the fact in the grounds and in the order of

detention that the detenue stands admitted to bail in both the FIRs,

CrlM No. 1759/2023

which have had been taken cognizance of by the detaining authority

while detaining the detenue, prior to the issuance of the impugned

detention order.

Perusal of the detention record produced by the learned

counsel for the respondents, inasmuch as, the counter affidavit filed

to the petition by the respondents even do not make a whisper as to

whether the respondents have had taken any steps for cancellation

of the bail granted to the detenue in the said FIRs, if the

respondents were alive to the alleged activities of the detenue after

grant of bail in the said FIRs to the detenue.

07. It is also not forthcoming from the detention record or the

response filed by the respondents to the petition that the detenue

after obtaining bail in the FIRs in question have had been found

involved in the drug related activities warranting the detention of

the detenue under the provisions of the Act of 1978.

A reference in regard to above to the judgment of Apex

Court passed in case titled as "Surya Prakash Sharma Vs State of

U.P. and others," reported in 1994(3) SCC 195, would be relevant

herein, wherein at para 5 following has been observed:-

"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, [1964] 4 SCR 921.

CrlM No. 1759/2023

To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat v. Union of India, AIR (1990) SC 1196 wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw (supra) 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 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 is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied 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."