HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. HC(W) No.14/2008 Date of Decision: 08.12.2008 Javed Iqbal Khan VS. State & Ors. ______________________________________________________ ______ Coram: MR. JUSTICE J.P.SINGH, JUDGE. APPEARING COUNSEL: For Petitioner : Mr. Shahzad Azeem, Advocate. For Respondents : Mr. V.K.Chopra, AAG. i) Whether to be reported in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No Javed Iqbal Khan has filed this Habeas Corpus Petition through his father Abdul Aziz Khan seeking quashing of District Magistrate, Jammu’s Order No.13/PSA/2007 dated 27.10.2007 directing his detention under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. Sh. Shahzad Azeem, appearing for the detenu questions petitioner’s detention saying that impugned order of the District Magistrate suffers from non-application of mind besides being arbitrary and violative of Article 22 (5) of the Constitution of India. Sh. V.K.Chopra, learned Additional Advocate General, on the other hand, justifies petitioner’s detention on the grounds reflected in the grounds of detention. 2 I have considered the submissions of learned counsel for the parties made at the Bar and perused the detention records. Petitioner, Javed Iqbal Khan, was in police custody in FIR No. 103/2007 registered under Sections 307/121-A/120- B/212 RPC, 7/25 Arms Act and 4/5 ESA at Police Station Janipur when District Magistrate, Jammu had directed his detention under Section 8 of the Jammu and Kashmir Public Safety Act on the ground that in the event his release on bail or otherwise, he was likely to revive his anti-national activities in future also which would pose a serious threat to security of the State. The detention records, however, do not contain any material on the basis whereof it may be even inferred that there was any likelihood of petitioner’s release on bail or otherwise and that he was likely to revive anti-national activities which would pose serious threat to the security of State. It was precisely because of this reason that the learned District Magistrate has not spelt out in the grounds of detention that the petitioner was likely to be released on bail or otherwise and all that he had said in the grounds of detention that in the event of petitioner’s release on bail or otherwise he would indulge in anti-national activities so his detention was warranted under Section 8 of Jammu and Kashmir Public Safety Act. Petitioner’s preventive detention, when he was already in police custody cannot thus be said to have been made because 3 of any compelling reasons and as such cannot be justified in view of the law laid down by Hon’ble Supreme Court of India in Surya Prakash Sharma v. State of U.P. reported as 1994 SCC (criminal) 1691 where while dealing with a similar question as to whether or not detention of a person who is already in police custody may be justified in the absence of any material demonstrating compelling reasons for his preventive custody, their Lordships had observed as follows:- “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 for consideration before a Constitution Bench in “Rameshwar Shaw vs. District Magistrate, Burdwan,” To eschew prolixity we refrain from dealing all those cases except that the Dharmendra Suganchand Chelawat vs. Union of India wherein three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words: (SCC p.754, para 21) “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 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.” 4 That apart, the petitioner does not appear to have been supplied the whole material which had been relied upon by the District Magistrate at the time he had contemplated petitioner’s detention. All that the petitioner is shown to have been supplied is only the grounds of detention running over three leaves and nothing beyond that. The petitioner is, therefore, right in complaining that non-supply of the material relied upon by the District Magistrate to him has deprived him of his Constitutional right to make an effective representation against his detention which may not be contemplated unless all the material that had entered the mind of the detaining authority had been supplied to the detenu thereby providing him requisite opportunity to represent to the Government his comments about his detention on the basis of the material on which it had been so ordered. Petitioner’s detention, therefore, becomes unsustainable being violative of Article 22(5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Petitioner’s second complaint that the detention order suffers from non-application of mind by District Magistrate too appears to be well founded. The District Magistrate does not appear to have applied his mind to go through the material which had been placed before him to consider placement of petitioner in preventive detention and all that he appears to have done in the case is to reproduce the Police Dossier as the 5 grounds of detention by only substituting the expression “the subject” appearing in the Police Dossier by the expression “you” in the grounds of detention. All this demonstrates that the detention order is arbitrary and a result of complete non-application of mind. For all what has been said above, petitioner’s detention by District Magistrate, Jammu, pursuant to the order impugned in this petition becomes unsustainable being violative of Article 14, 22(5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act. The detention order is, therefore, liable to be quashed. Allowing this petition, District Magistrate, Jammu’s Order No.13/PSA/2007 dated 27.10.2007 is, accordingly, quashed. A direction would thus issue to the respondents to set the petitioner to liberty forthwith, if not, required in any other case. Detention records be returned to the State Counsel. (J. P. Singh) Judge Jammu. 08.12.2008 Tilak, Secy.