HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Date of Decision: 14.02.2019 [ENTITY] v.
State of J&K and others Coram:
Hon'ble Mr Justice [ENTITY], Judge Appearing counsel:
For petitioner(s): Mr [ENTITY], Advocate vice [ENTITY], Advocate For respondent(s): Mr [ENTITY], AAG Whether approved for reporting? Yes/No
1. Challenge is thrown to the Order no.45/DMP/PSA/18 dated 06.10.2018, passed by District Magistrate, Pulwama - respondent no.2 herein, whereby [ENTITY] son of [ENTITY] resident of Tulbagh Namblabal Tehsil Pampore District Pulwama (for brevity the "detenu"), has been placed under preventive detention, on the grounds set out in petition in hand.
2. Counter affidavit has been filed by the respondents, vehemently resisting the petition.
3. Heard the learned counsel for the parties and considered the matter.
4. The learned counsel for the petitioner states that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of the detention order on such grounds is unjustified and unreasonable. The detaining authority is said to have spelled out no compelling reason to pass the order of preventive detention against the detenu. His further submission is that mere filing of the application for grant of the bail does not justify passing of the detention order because there was no real possibility of the detenu getting bail in the case.
Learned counsel also states that the detenu was not provided the material, both for and against him placed before the detaining authority for arriving at subjective satisfaction and as a result whereof, the detenu was prevented to make an effective representation. According to the learned counsel, the detenu is not an English literate and understands only Kashmiri/Urdu language but the order of detention is in English and no translated script in Kashmiri or Urdu was furnished to the detenu nor was the grounds of detention read over and explained to him in the language he understands, so that he could make an effective representation and that this in itself amounts to infraction of provisions of [SECTION] of [ACT], read with [SECTION] of the [ACT]. To buttress his arguments, the learned counsel for the petitioner has placed reliance on [PRECEDENT]; [PRECEDENT]; [PRECEDENT].
5. In repudiating the above contentions, the learned counsel for the respondents has contended that for justifiable reasons an order for detention could be made in respect of a person who was in custody and that all the technical requirements had been complied with, more particularly as required under the Act of 1978, which provide that earliest opportunity of making a representation be provided to detenu.
6. The question of the personal liberty of a person is sacrosanct and the State Authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights guaranteed under [SECTION] and [SECTION] of the [ACT]. The law of preventive detention could be described as a "jurisdiction of suspicion" and the compulsion of values of freedom of democratic society and of social order sometimes might compel a curtailment of individual's liberty. Be that as it may, the personal liberty of an individual is the most precious and prized right guaranteed under the [ACT] in [SECTION] thereof. The State has been granted the power to curb such rights under the criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are, by any means, prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. [See: [PRECEDENT]; [PRECEDENT]]
7. Whether a person who is in jail can be detained under detention law has been a subject matter of consideration before the Supreme Court very often. In [PRECEDENT], the Supreme Court while considering the same issue has reconsidered its earlier judgments on the point in [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT], and came 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 implies that there must be cogent material before the detaining authority on the basis whereof it may be satisfied that (a) the detenu is likely to be released from the 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.
8. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention mention that the detaining authority is aware of the fact that the detenu was in the custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any convincing ground in support of the averments made in the grounds of detention that if the detenu is released on bail he may again indulge in terrorist/subversive related activities which would prove fatal for the security of the State. To put it in a different way, the satisfaction of the detaining authority that the detenu might indulge in subversive activities causing threat to security of the State, solely on the basis of a solitary lodgement of the FIR no.95/2018, cannot be said to be proper and justified. A mere ipse dixit statement in the grounds of detention that the detenu may be released on bail, cannot sustain the detention order and has to be ignored. In that view of matter the impugned detention order is vitiated.
9. It is germane to mention here that the preventive detention is not a quick alternative to the normal legal process, is the saying of the Supreme Court in [PRECEDENT]. The Supreme Court has held that preventive detention of a person by a State after branding him a 'goonda' merely because the normal legal process is ineffective and time-consuming in 'curbing the evil he spreads', is illegal and that the detention of a person is a serious matter affecting the liberty of the citizen. The preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws, the Supreme Court observed. Recourse to the normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities, affecting security of the State, and that there was no other option except invoking the provisions of the [ACT] as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted. The preventive detention involves the detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating the crimes which the detenu may have committed. After all, the preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. My views are fortified by the judgements rendered in [PRECEDENT] (supra) and [PRECEDENT] case (supra) and [PRECEDENT].
10.For the foregoing reasons, petition is disposed of and detention Order no.45/DMP/PSA/18 dated 06.10.2018, passed by District Magistrate, Pulwama, is quashed. Respondents are directed to release the detenu, namely, [ENTITY] son of [ENTITY] resident of Tulbagh Namblabal Tehsil Pampore District Pulwama, forthwith, provided he is not required in any other case. Disposed of.
( [ENTITY] ) Judge [ENTITY] 14.02.2019 [ENTITY], PS