The Court while hearing a petition challenging the detention order has observed that one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. The power of preventive detention is a precautionary power exercised in reasonable anticipation.
The Court further observed that an order for detention can be passed against a person in custody and for that purpose, it is necessary that grounds of detention must show that (i) detaining authority was aware of the fact that detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that detenue is already in detention.
In the instant case, detenue was arrested in connected with FIR registered under Sections 13, 18, 39 ULA(P) Act and subsequently he was released on bail by the Court of Special Judge TADA/POTA Srinagar. However, after four days he was again arrested in terms of the impugned detention order.
The petitioner averred that the detenue at the time of passing of detention order was already under police custody and the respondents have not supplied the documents, i.e., order of detention, dossier, copy of FIRs, recovery memo, statement under Section 161 Cr.P.C and other documents relied upon by the detaining authority to the detenue while passing the impugned detention order, so as to enable the detenue to make an effective representation.
Whether a person, who is in jail, can be detained under preventive detention law?
At the outset, the Court referred to the judgment in Dharmendra Suganchand Chelawat & anr. V. Union of India, AIR 1990 SC 1196 wherein it has been observed that an order for detention can be passed against a person in custody and for that purpose, it is necessary that grounds of detention must show that (i) detaining authority was aware of the fact that detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that 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 detaining authority on the basis whereof it may be satisfied that (a) detenue is likely to be released from custody in near future, and (b) taking into account the nature of antecedent activities of detenue, 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.
Constitutional Safeguards Guaranteed under Article 22(5) of the Constitution of India:
The Court observed that “Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee safeguard to detenue to be informed, as soon as may be, of grounds on which order of detention is made, which led to the subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention.”
“Detenue is to be furnished with sufficient particulars to enable him to make a representation, which on being considered, may obtain relief to him. Detention record, made available by learned counsel for respondents, reveals that detention order was made on proper application of mind, to the facts of the case and detenue was delivered at the time of execution of detention order, the material and grounds of detention and also informed that he had a right to represent against his preventive detention.”
The Court after perusal of detention order noted that the PSA detention warrant has been executed on 29.11.2020 and contents of detention warrant and grounds of detention have been read over to the detenue in English and explained him in Urdu/Kashmiri language which the detenue understood fully in lieu of which his signature has been obtained.
The Court further noted that the detenue was informed that he can make representation to the Government and detaining authority.
One Single Act can constitute the basis of detention:
“10. It may not be out of place to mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched.”, the Court observed.
The Court after referring to the judgment of the Supreme Court in Gautam Jain vs Union of India and anr reported in AIR 2017 SC 230 made the following observations:
13.….They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.
In view of the above, the Court dismissed the petition.
Mohammad Yousuf Magray vs Union Territory Of J&K And Another
WP(Crl) No. 2/2021
CrlM No. 1409/2021
Coram: Justice Tashi Rabstan
Mohammad Yousuf Magray
Mr. Syed Faheem Indrabi, Advocates, appeared for the petitioners
Mr. Asif Maqbool, Dy. AG, appeared for the respondent
Date of Judgment: 16-02-2022
Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334;
Masood Alam v. Union of India, AIR 1973 SC 897;
Dulal Roy v. District Magistrate, Burdwan, AIR 1975 SC 1508;
Alijan Mian v. District Magistrate, Dhanbad, AIR 1983 SC 1130;
Ramesh Yadav v. District Magistrate, Etah, AIR 1986 SC 315;
Suraj Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177;
Binod Singh v. District Magistrate, Dhanbad, AIR 1986 SC 2090;
Smt Shashi Aggarwal v. State of U.P., AIR 1988 SC 596.