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No. F.2/1/88-HP-II/ Pt.-I/775-78.—Whereas the Lt. Governor of the National Capital Territory of Delhi is satisfied that it is necessary to do so;

Now, therefore, in exercise of the powers conferred by sub-section (3) of section 3, read with clause (e) of Section 2 of the National Security Act, 1980, the Lt. Governor of the National Capital Territory of Delhi is pleased to direct that during the period 19/04/2020 to 18/07/2020 the Commissioner of Police, Delhi may also exercise the powers of detaining authority under sub-section (2) of the section 3 of the aforesaid Act.


HOME (POLICE-II) DEPARTMENT

[Notification dt. 07-04-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan J., in a matter relating to preventive detention declined to provide opinion over that of detaining authority and reiterated that the object of preventive detention is not to punish a man but to prevent from any further acts.

The present case relates to the detenu, Mian Abdul Qayoom who is a renowned Practising Senior Advocate in the Jammu and Kashmir High Court and is also the President of the High Court Bar Association. The detenu had been placed under preventive detention in the year 2010 and after several confinements in various Sub Jails of the state, the detention order was withdrawn. The detenu was said to have been arrested during August 2019 and has been lodged into police custody under preventive detention. Upon several enquires as to the grounds of detention the close relatives of the detenu received an order and it was reported that the detenu was suffering from various ailments.

Advocates, Z.A. Shah, with Manzoor A. Dar, representing the petitioner submitted that the impugned order of detention issued by the respondent had not been communicated nor provided to detenu, which deprived the petitioner of making an effective representation before detaining authority. It was also submitted that the grounds of detention were signed by the respondents without any application of mind and without going through the grounds of detention. It was pointed out that the respondents had relied upon the FIRs registered in the year 2008 and 2010 for detaining the detenu, for which the petitioner had already served the required detention.

Senior Additional Advocate General representing the state,  B. A. Dar contended that the detenu was detained legally under the J&K Public Safety Act, 1978 (“Act of 1978”) and all statutory requirements have complied. It was contended that the contents of detention order/warrant and grounds of detention are stated to have been read over and explained to detenu. Grounds of detention have been framed by detaining authority with a complete application of mind after carefully examining the material/record furnished to it by sponsoring agency and only after deriving subjective satisfaction

The Court upon perusal of the facts and circumstances of the case reiterated the purpose of the Act of 1978 that “the purpose of the J&K Public Safety Act, 1978, is to prevent the acts and activities prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level consequences….it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.” The Court on examining the records stated that the grounds for detention are definite, proximate and free from any ambiguity. The Court placed reliance on State of Gujarat v. Adam Kasam Bhaya, (1981) 4 SCC 216 and observed that it is a settled law that the High Court in the proceedings under Article 226 of the Constitution has limited scope to scrutinizing whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material. It also relied on State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35 and stated that the High Court does not sit in appeal over the decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. Upon reliance to various Supreme Court decisions the Court concluded that the present matter lies within the competence of Advisory Board since preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. [Mian Abdul Qayoom v. State of J&K, 2020 SCC OnLine J&K 96, decided on 07-02-2020]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed the application filed by the petitioner to free him from detention.

The petitioner filed a Habeas Corpus petition against the order of detention, passed by the Respondent 2 who is the District Magistrate Baramulla, in exercise of powers conferred in him under Clause (a) of Section (8) of the Jammu and Kashmir Public Safety Act, 1978 (“The Act of 1978”). It was submitted that the detaining authority had failed to apply its mind to the fact whether the preventive detention of the detenue was imperative, notwithstanding his release on bail in substantive offences. It was also submitted that such order was passed on the dictates of the sponsoring agency, i.e. the Officer who had prepared the police dossier and no attempt had been made by the Respondent 2 to scan and evaluate it before issuance of the order of detention. 

The Respondents submitted that the detaining authority had complied with the requirement of Clause 5 of Article 22 read with Article 21 of the Constitution of India. The detenue did not file any representation against the order of detention. The detenue was involved in two different cases for the commission of offences punishable under the ULA(P) Act and the Ranbir Penal Code (RPC). 

The Court emphasized the issues that since the detenue was released on bail in the FIRs that formed the baseline of the order of the detention, therefore, an order of detention could have been passed under such circumstances or not. The Court relied on the law laid down by the Supreme Court in paragraph No. 24 of the judgment delivered in the case of Sama Aruna v. State of Telangana, AIR 2017 SC 2662”:

“24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: 

“6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 

The Court held that the detenue could not have been detained after taking recourse to the provisions of “The Act of 1974” when he was already on bail. While discussing the duty of the State to follow the law of the land so as to safeguard the rights of the citizens the Court exclaimed that:

The State could have exercised its right to knock at the doors of a higher forum and seek the reversal of the orders of bail so granted by the competent Court(s). This single infraction knocked the bottom out of the contention raised by the State that the detenue can be detained preventatively when he was released on bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land. 08. Life and liberty of the citizens of the State are of paramount importance. A duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision. A citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law.”

In view of the above-noted facts, the instant petition was allowed and the impugned order of detention of the petitioner stood to be quashed. [Shabir Ahmad Mir v. State of J&K, 2019 SCC OnLine J&K 882, decided on 05-11-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: This Habeas Corpus petition was filed before the Bench of Ali Mohammad Magrey, J., for quashing of a detention order passed by District Magistrate by which detenu was detained.

Mir Shafaqat Hussain, learned counsel on behalf of petitioner submitted that detenu can make a representation to the Detaining Authority, is a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India and is a right under section 13(1) of the Jammu and Kashmir Public Safety Act, 1978 but the same was denied. Mir Suhail, Addl. Advocate General stated that detenu’s activities were prejudicial to the security of the State as well as the public order. Detaining him would prevent him from indulging in such acts was approved by the Government and the State Advisory Board constituted under Section 14 of PS Act.

High Court found substance in the arguments of the petitioner. On the point where detenu was not communicated the ground of detention it was found that grounds of detention were in English language and it was not suggested from the file before the Court if the grounds were explained to the detenu in a language understood by him. Thereby, depriving detenu of the right to make representation against the same. Detenu’s constitutional right was infringed as the Detaining Authority failed to mention in the detention order about petitioner’s right to make representation which renders the impugned order invalid. Therefore, impugned detention order was quashed and direction to release the detenu was passed. [Ajaz Ahmad Sofi v. State of J&K, 2019 SCC OnLine J&K 408, Order dated 03-05-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed the petition which challenged the order of the district judge of preventive custody.

The detenue was arrested from his home for the commission of offences punishable under Section 121-A RPC, 7/25 Arms Act and 13 ULA (P) Act and while in custody impugned order of detention was issued.

The contention of the petitioners forwarded by Mr Mir Shafaqat Hussain was that the Grounds of detention stated were vague, non-existent and unfounded. Thus the respondents were stated to have violated the procedural safeguards as provided under Article 22(5) of the Constitution of India and to have ignored to provide material relied upon by the detaining authority.

The contention of the respondents was that activities of detenue were highly prejudicial to the security of the State and also that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him.

The Court considering the fact that the respondents did not bring anything on record to indicate that the copy of the FIR, statements recorded under Section 161 CrPC and other material collected in connection with investigation of the case were ever supplied to the detenue, held that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue.

The petition was thus allowed. [Abdul Rashid Magloo v. State of J&K, 2018 SCC OnLine J&K 983, decided on 18-12-2018]