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Circumstances for Passing an Order of Detention against Person Already in Custody: High Court of Jammu & Kashmir and Ladakh at Srinagar

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, was examined by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR, before a bench consisting of Hon’ble Mr. Justice Javed Iqbal Wani, in the matter of Yasir Majeed Mir vs. Union Territory of Jammu & Kashmir and Ors. [WP (Crl) No. 39/2021], on 09.12.21.

Through the medium of the instant petition, quashment of  the impugned detention order passed against the detenu, namely, Yasir Majeed Mir, was sought for by the petitioner as also a writ of mandamus for his release.

The Learned Counsel for the Appellants, argued as stated in the petition that the detenu is a law abiding and peace-loving citizen and has never involved in any subversive activity prejudicial to the public order or security of the State. The detenu is stated to have been arrested on 27.08.2020, after being summoned to Police Station Kokernag, and was implicated falsely in the case FIR, and while being in custody therein in the said FIR came to be detained under preventive custody by the respondents in terms of impugned order and lodged at District Jail, Kathua. The impugned order is being challenged, inter alia, on the grounds that detenu was already in custody in connection with the FIR and the detaining authority, despite having the knowledge of the said fact, detained the detenu without spelling out any compelling reason thereof in the grounds of detention. It was further urged in the grounds that the detenu had not been provided copies of the relevant material, like copy of dossier, copy of FIR, statements under Section 161, 164-A of the Code of Criminal Procedure, 1973, referred to in the grounds of detention, thus, depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional right of the detenu guaranteed under Article 22 (5) of the Constitution of India.

The Learned Counsel for the Respondents, pointed out that in the respondents, in their reply affidavit filed in opposition to the petition, resist and controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that detenu was detained pursuant to impugned order. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu. It was next averred by respondents that impugned order was executed in accordance with the relevant provisions of law and that the detenu was handed over to the Assistant Superintendent, District Jail, Kathua, for lodgement and that the contents of detention order/warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu subscribed his signatures on the execution report or order. It is being next stated that the Advisory Board, after considering the material placed before it, in terms of Section 16 of the Jammu & Kashmir Public Safety Act, 1978, held that there is sufficient cause for detention of the detenu. On receipt of the opinion of the Advisory Board, the Government confirmed order of detention. Thus, respondents in the process are stated to have complied with all statutory, constitutional provisions, and followed all requisite formalities without violating any of them.

The High Court of Jammu & Kashmir and Ladakh at Srinagar, in light of the facts, submissions and evidences, held 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 detenue is 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) taking into account the nature of the antecedent activities of the 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. However, no such reasons were fulfilled to the satisfaction of the mandate and thus, the impugned order, thus in law, does not sustain on this count alone. Additionally, the Court observed that with respect to provision of documents, it is only the procedural requirements, which are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present case it was noted that, procedural requirements, as discussed above, have not been followed and complied with by respondents in letter and spirit and as a consequence thereof, petition on hand requires to be allowed. Thus, the petition was accordingly allowed, and the impugned order quashed.

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Judgement reviewed by Bhargavi

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