AB HAMID BHAT Vs. STATE

JUDGEMENT

(1.) THE detenue, Abdul Hamid Bhat, S/o Ab. Gani Bhat, R/o Kandi Handwara, through his father seeks to quash the detention order No. DMK/PSA/83 of 2003 dated 25.2.2003 passed by District Magistrate, Kupwara in exercise of his power u/s 8 of the J&K Public Safety Act 1978 (hereinafter referred to as "the Act") directing preventive detention of the detenue for a period of 24 months.

(2.) THE detention order has been challenged on the grounds that the detenue has neither been produced before the Advisory Board nor provided an opportunity to appear and defend himself before the Advisory Board. The Advisory Board has not recommended the continuation of the detention of the detenue. The respondents have not informed the detenue to make representation against the detention order is breach of section 13 of the Act. The material referred to and relied upon has not been supplied to the detenue. He was taken in custody on 22.1.2003 under FIR No. 12/2003 registered in Police Station Kupwara. The detaining authority has not shown the compelling reasons for detention of the detenue. The compelling reasons shown are that the ordinary law of the land will not serve any corrective measures, as such, the detention of the detenue become imperative under the Act. The detenue has not been explained the grounds of detention in his mother language i.e. Kashmiri. The detenue knows only Kashmiri language as he has read only upto 7th class. The respondents have not filed their counter affidavit despite granting opportunities. Heard learned counsel for the parties and perused the record made available by the learned counsel for the respondents. The points for consideration of the Court are: - 1. whether the detaining authority without spelling out the compelling reasons while the detenue was in their custody under FIR No. 12/2003, could direct preventive detention. 2. whether it could be a ground for directing preventive detention that the ordinary law of the land is not sufficient as a corrective measure.

(3.) THE grounds of detention if not communicated to the detenue in the language he understands, the detention order can be maintained. 3. Learned counsel for the petitioner has further submitted that this court has settled the proposition of law that a citizen can be detained by the detaining authority on the grounds mentioned in Sec.8 of the Act. The detention of the detenue has been directed on the ground that ordinary law of the land is not enough as a corrective measure. According to the learned counsel for the petitioner, this ground does not fall within section 8 of the Act for arriving of subjective satisfaction by the detaining authority. Relying upon the judgment of this Court delivered in Ghulam Nabi Dar Vs. State of J&K and Ors. reported in 2002 K.LJ 637, learned counsel has submitted that the detention order deserves to be quashed. Dealing with the argument of the learned counsel therein that ordinary law of land is no ground for directing preventive detention, the court observed as under: "The compelling reasons spelled out by the detaining authority are, that ordinary criminal law is not enough to prevent detenue from such subversive activities. Similar proposition of law was also in HCP No.97/2000 titled Bilal Ahmad Bhat Vs. State and others wherein while dealing with it, satisfaction and the reasons disclosed by the detaining authority while directing the preventive detention of the detenue is that the ordinary law of the land is not sufficient to deter the detenue from his activities. This cannot be accepted either as a ground of detention. While dealing with a similar proposition of facts and law, the Supreme Court in "Surya Prakash Sharma Vs. State of U.P. reported in 1994 SCC (Cri) 169 in para 5 has held that: "The question as to whether and in what circumstances an order for preventing 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, Burdan." To eschew prolixity we refrain from dealing all those cases except that Dharmandra Suganchand Chelwat Vs. Union of India wherein three Judge Bench, after considering all the earlier relevant directions 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 detenue was already in detention and (ii) there were compelling reasons justifying such detention despite the fact that the detenue 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 detenue is likely to be released from custody in the near future and (b) that 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." The detaining authority has to disclose the compelling reasons if the reasons are not disclosed the impugned order suffers for non -application of mind. Grounds of detention indicate the awareness of the detaining authority that the detenue was in custody of the respondent any cogent material that ordinary law of the land is not sufficient to deter the detenue from such activities. Such subjective satisfaction of the detaining authority cannot, therefore, be said to be proper and justified." The case of the detenue is fully covered by the judgment (supra). Respondents have not shown any material to make out that the ordinarily law is not enough to prevent the detenue despite the fact that the detenue was already taken into custody for alleged commission of offence under section 13 of the Unlawful Activities Act. The subjective satisfaction arrived at under such circumstances cannot be said to be proper and justified. The detention order therefore deserves to be quashed." The above reported judgment applies fully to the case of the detenue and the detention order thus, cannot be maintained.