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Masarat Alam Bhat v/s State & Others


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    HCP. No. 64 of 2015

    Decided On, 29 December 2015

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR

    For the Petitioner: M.A. Qayoom, Advocate. For the Respondents: M/s. S.A. Naik, AAG, N.H. Shah, AAG.



Judgment Text

(This Judgment Delivered at Srinagar Bench)

The District Magistrate, Jammu, in exercise of powers conferred upon him by Jammu and Kashmir Public Safety Act, 1978 ( for short ‘Act of 1978’) issued Order No. 5/PSA of 2015 dated 1st September, 2015, whereunder, Masrat Alam S/O Late Abdul Majeed Bhat R/O Zaindar Mohalla Srinagar (for short 'detenue') has been detained. The Government vide Government Order No. Home/PB-V/1397/2015 dated 30th November, 2015, in exercise of powers conferred upon it by Section 8(1) read with Clause (a) Sub Section (i) of Section 8 of the Act of 1978 has directed that detenue be detained for further period of three months with effect from 1st December, 2015.

The detenue has challenged the aforesaid order in this petition.

The respondents have filed reply affidavit.

Mr. M.A.Qayoom, learned counsel for the detenue submitted that the impugned detention order is illegal, inter-alia, on the grounds; the District Magistrate has abused its Authority by issuing detention order, inasmuch as, the grounds of detention, which have been relied upon by him are not only stale, but have been considered by the Court in the earlier round of ligation vide its Judgment dated 2nd June, 2012 passed in HCP. No. 32/2015 and detention order was quashed; the detenue at the time of issuance of impugned detention order, was in the custody of the State, as such, had not indulged in any activity which would warrant for issuing fresh detention order; the detenue was arrested in FIR. No. 92/2015 registered at Police Station Budgam under Sections 120-B, 121,124-A, 147, 341,336 and 427 RPC read with Section 13 of Unlawful Activities (Prevention) Act and bail application filed by him stands rejected by the learned Chief Judicial Magistrate, Budgam vide its Judgment dated 25th April, 2015 and this order has not been challenged by the detenue, but the detaining Authority at the time of passing of impugned order has not shown its awareness about the said fact; in the detention order the detaining Authority has mentioned that detenue has been detained to prevent him from acting in any manner prejudicial to the maintenance of public order, whereas in the grounds of detention it has been mentioned that the order is being passed from preventing the detenue from indulging in activities which are prejudicial to the security of the State and maintenance of public order; the alleged activities attributed to the detenue while he was in jail cannot become a ground in law for issuing the impugned detention order. Learned counsel in support of his contentions referred to and relied upon the judgments of Hon’ble the Supreme Court and this Court reported in AIR 1970 SC page 1664, 2013 (1) SLJ 273, 2008 (II) SLJ 689, (1980) I SCC page 132 and prayed for allowing of this petition.

M/S S.A Naik, and N.H.Shah, learned AAG(s) supported the detention orders. Learned counsel submitted that in order to ensure that there is no disruption in the public order, it had become necessary to detain the detenue. Learned counsel also submitted that activities of the detenue have always become cause of concern for the State Authorities, inasmuch as, his activities have always been found to be such which have potential of endangering the security of the State as also public order. Learned counsel referred to the stand taken by the respondent-Authorities in the reply affidavit and prayed that the petition be dismissed.

Ever since, the creation of human beings, in order to allow them space for developing their moral, spiritual, mental, material and physical faculties, their conduct has been regulated by rules and norms. The conduct of human beings is being regulated by divine laws as also by man made laws. In order to attain spiritual, moral, mental and material heights, maintenance of peace in the society becomes imperative.

Every citizen is responsible to maintain the peace in the society.

It is said that no virtue is absolute nor even freedom. The rights of an individual in the society are regulated by norms. No individual has rights to infringe the rights of another individual/citizen.

Liberty of an individual is his basic human right which is recognized by Article 21 of the Constitution of India. Article 21 of the Constitution of India provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. The person, thus, can be deprived of his liberty by Authority of law alone and that too when same is required for the overall welfare of the society. If an allegation is made against a person, then Investigating Agency conduct investigation and on prima-facie establishment of charges file report before court of competent jurisdiction. The Court tests the veracity of allegations made in police report during the trial of the case.

The Constitution in terms of Article 22 has yet recognized another mode of depriving a person of his liberty that is by detaining him under the preventive detention laws. These laws are made to prevent a person from committing the penal offences. These preventive laws are made for ensuring maintenance of security of the State as also the public order. In terms of preventive detention laws, the allegations made against a person, on which, he is sought to be detained, are not being tested by conducting the investigation in those allegations nor they are subjected to scrutiny of a regular court.

For detaining a person under preventive detention laws, utmost care has to be taken by the detaining Authority in ordering for detention of a person. The activities of the person must be such, which, in the overall interest of society, would require him to be detained under preventive detention laws. The preventive detention laws are exception to the normal rule of booking a person for having committed some penal offences as in the later case the allegations are to be first investigated and thereafter tested on the anvil of trial by the court of law. As already stated same is not the position in respect of a person who is detained under preventive detention laws. The Authority can invoke preventive detention laws, thus, only in rare and extreme circumstances. The preventive detention laws cannot be pressed into services in a routine manner. The democratic societies frown upon preventive detention laws, as also their frequent invocation.

The circumstances appearing in this case render the impugned detention orders illegal for the following reasons:-

(a). the detaining Authority has in the grounds of detention recorded that detenue is required to be detained to prevent him from acting in any manner prejudicial to the security of the State and maintenance of public order. Hon’ble the Supreme Court in G.M.Shah’s case has ruled that a person can be detained either on the ground that his activities would be prejudicial to the security of the State or he can be detained to prevent him from indulging in such activities which would affect the public order. The detention order suffers from lack of application of mind;

(b) the bail application of the detenue was rejected by the learned trial court much before passing of detention order. The detaining Authority has shown complete lack of awareness about the said important aspect of the case. The order of the learned Magistrate has not been challenged by the detenue. The detaining authority, if this fact had been brought to his notice, may have been dissuaded to pass the impugned detention order by feeling satisfied that the detenue continues to be in the State custody. Otherwise, if he had to still pass the detention order, then he was required to show compelling reasons for same;

(c) the purported ground of the detention, in the facts and circumstances of this case would not warrant passing of fresh detention order;

(d) the law laid down by Hon’ble the Supreme Court in the cases referred to and reli

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ed upon at the time of hearing of the case by learned counsel for the petitioner does render the impugned detention order illegal. In view of the law laid down by Hon’ble the Supreme Court and for the above stated reasons the impugned detention order(s) are rendered illegal. The laws are sacred as they protect the rights of the people. It becomes duty of the Court to enforce the laws of the land even in extreme circumstances. The citizens are in the like manner duty bound to obey and respect the laws of the land. For the above stated reasons this petition is allowed in the following manner:- By issuance of writ of Certiorari, the impugned detention order(s) bearing Nos’ 05/PSA of 2015 dated 01-09-2015 and Home/PB-V/1397/2015 dated 30.11.2015 are quashed. The respondents are directed to release the detenue from preventive custody.
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