MOHD SADIQ Vs. DISTRICT MAGISTRATE, DODA

JUDGEMENT

(1.) THIS petition has been moved by the father -in law of the detenuee namely, Riaz Ahmad Rather S/o Ahdul Ahad Rather R/o Mohalla Shinal Doda, praying for quashing of detention order No: 154 -56/DM/Doda dated: 28 -5 -1994. The detenuee is a peon in the Treasury Office Doda. It appears, that a FIR was registered against him with Police Station, Gandoh on 22 -12 -1993 bearing No: 61 of 1993 under the provisions of Terrorist and Disruptive Activities (Prevention) Act, and he was taken into custody. While he was in custody, the detention order came to be passed against him by District Magistrate, Doda on 285 -1994. The District Magistrate on the basis of material placed before him came to the conclusion that the activities of the detenue were prejudicial to the security of the State, and therefore, he ordered his detention in terms of provisions of Public Safety Act, 1978. The contention of the petitioner is that the detenue has not committed any offence whatsoever, and he was not indulging in any activities which were prejdicial to the security of the State, which would warrant his detention under the provisions of Public Safety Act. The detention order has been challenged on various grounds, including the one that he was in custody when the detention order was passed and served on the detenue. The detaining authority has not taken into consideration the pendency of a criminal case against him while arriving at subjective satisfaction of ordering detention of the detenue. The grounds of detention also disclosed, as under: " You were lateron arrested in case FIR No. 61/93 under section 3/4 TADA etc. Police Station Gandoh on 22 -12 -93, and since then you are in Police custody. In the light of the above grounds which are based on dossier submitted by Superintendent of Police, CID, CI, Jammu, I have arrived at the conclusion that your aforementioned activities are prejudicial to the security of the State. Although you are in Police custody, your detention under the pro visions of Public Safety Act, 1978 is absolutely necessary to prevent you from indulging in similar activities."

(2.) COUNSEL for the petitioner submits that although the detaining authority was aware that the detenue was in Police custody for almost five months, but it was not disclosed as to what were the compelling reasons justifying the detention on of the detenue under Public Safety Act. It appears, that the detaining authority was not even aware as to whether any bail application had been moved by the detenue or not? The counsel for the petitioner has drawn my attention to a Judgment of the Supreme Court in case titled: Vijay Kumar V/s Union of India reported in AIR 1988 SC 934, in which it has been held that the grounds of detention should disclose: 1) Awareness of the detaining authority of the fact the detenue is already in detention; 2) There must be compelling reasons justifying such detention, despite the fact that the detenue is already under detention". The learned counsel for the petitioner has also referred to a Judgment of this Court delivered in HC petition No: 646 of 1994 in support of his case.

(3.) FROM the persual of record, it appears that although the detaining authority was aware that the detenue was in custody, but he has failed to give any reasons, muchless, compelling reasons in the grounds of detention justifying passing of detention order under J&K Public Safety Act against the detenue. The impugned order therefore deserves to be quashed on this ground alone. My attention was also drawn to AIR 1989 SC page 2265. Although, in that case the detaining authority had said " there are full possibilities that you may be released on bail in this offence also", even then the Supreme Court did not approve of the detention of the detenue on the ground that the detaining authority was completely un -aware of the fact that at all any application for bail was made on behalf of the detenue for his release before the Designated Court. And as the possibility of his coming out on bail was non -existent, therefore, the detention was not approved. In the present case also, the detaining/authority was not aware as to whether there was any application for bail pending before the Designated Court, and whether there was any possibility of detenue getting bailed out.