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detention in the year 2010 and after several confinements in various Sub Jails of the state, the detention order was withdrawn.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 and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order of Masood Ahmad Bhat while directing for his release from the preventive custody.

Denetu, Masood Ahmad Bhat, sought quashing of detention order dated 22-01-2019.

The grounds of which the detention order was challenged were as follows:

  • No compelling reason or circumstance was disclosed in the order; more so on the date of the passing of the order of detention, the detenu was already in custody.
  • Material forming detenu’s order of detention not provided in order to make representation
  • Detaining authority did not prepare grounds of detention itself; which is a pre-requisite before passing any order.

On receiving the notice passed to the respondents they submitted that the order was in consonance to fact and law and they further sought the dismissal of Habeas Corpus Petition.

Counsel for the petition submitted that in light of the above-stated grounds and the fact that the detenu was already in custody leaves no possibility of detenu being implicated in the activities prejudicial to the security, sovereignty and integrity of the State. Detention Order has been passed in absence of any material and the same is therefore bad in law. He also referred to the Supreme Court case, T.V. Sravanan v. State, (2006) 2 SCC 664.

Observations of the Court

Bench stated that the only precious and valuable right guaranteed to a detenu is of making an effective representation and the same can be done only when the relevant material and grounds of the detention are made available to the detenu.

Since the material is not supplied, right of the detenu to file such representation is impinged upon. Bench relied on the following cases for the said point, Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, Khudiram Das v. State of W.B., (1975) 2 SCC 81 & Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531.

Court examined the present case on the touchstone of the above-settled position of law and perusal for the record, the detenu was not supplied the materials relied upon by the detaining authority. Therefore, the detention of the detenu is vitiated.

Court also added that detenu was involved in the substantive offence and did not apply for bail for the same, thus he can remain in custody for that unless released on bail.[Masood Ahmad Bhat v. State of J&K, 2019 SCC OnLine J&K 791, decided on 25-09-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. set aside the detention order passed by respondent 2-District Magistrate, Baramulla and ordered the detenu to be released from preventive custody.

In the present case, the petitioner had challenged a detention order passed by respondent 2 whereby the petitioner was taken under preventive custody. The respondent had also filed a counter affidavit wherein they resisted the petition by pleading that the detention order was passed by following the procedure under the law.

Learned counsel for the respondent, Asif Maqbool, produced the detention record to lend support to the stand taken in the counter affidavit.

Learned counsel for the petitioner, Mir Shafaqat Hussain, pointed out that the detenu had been shown involved in various FIRs but the fact that he had already been admitted to bail in these FIRs had not been mentioned though the mention of the FIRs was made. This showed that all the circumstances and materials were not examined. A person involved in a criminal case could be detained under the provisions of preventive laws provided there were compelling circumstances to do so. Preventive detention is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, should not be on the ipse dixit of the detaining authority.

While relying on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, it was pointed out that the procedural requirement are the only  safeguard available to the detenu, therefore, the procedural requirement should be strictly complied with, it was the duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If the record suggested that there was non-application of mind, which ipso facto meant that subjective satisfaction was missing.

Due to the cumulative effect of the above discussion, it was held that, the impugned order of detention passed by respondent 2 was not valid. The order was set aside directing that the detenu be released from the preventive custody.[Shahid Ahmad Tantray v. State of J&K, 2019 SCC OnLine J&K 422, decided on 08-05-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: In this petition filed before Rashid Ali Dar, J., an order passed by District Magistrate, Baramulla was challenged whereby detenu was ordered to be taken into preventive custody under Section 8 of the J&K Public Safety Act.

Petitioner’s custody in the police for the offences referred in the grounds of detention was converted into the custody under the impugned detention order. Petitioner challenged the order of detention on the ground that detenu was already under custody where an FIR was registered for offences under Section 7 and 25 of the Arms Act, 2013 and thus could not have been detained under the provision aforementioned. Whereas, Asif Maqbool, learned counsel on behalf of respondents contended that order of detention was passed taking into consideration the relevant provisions of the Act and he was well informed of the grounds of his detention thus, no illegality occurred. The question before the Court was, whether an order of detention could have been passed when the detenu was already in the custody of the police.

High Court relied on the case of A.K. Gopalan v. State of Madras, (1950) 51 Cri LJ 1383 where it was held that: “Preventive detention is by its very nature repugnant to democratic ideals and an anathema to the rule of law”. Court mentioned that the mindset of respondents seems to be that if the detention order was passed the petitioner could not apply for bail and if he does he would be prevented by virtue of this order. The above thought of respondents was improper as the authorities in case of bail application could have contested the same thus; the impugned order cuts the very root of the State Act. Hence, this petition was allowed and the impugned order was quashed. [Akhter Rasool Lone v. State of J&K, 2019 SCC OnLine J&K 429, decided on 10-05-2019]

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

Madras High Court: A Division Bench comprising of C.T. Selvam and S. Ramathilagam, JJ. ordered parole of two weeks to a life-convict in light of exercising his conjugal rights.

In the present case, the petitioner is the wife of the life convict, who sought leave for her husband for the purpose of the exercise of conjugal rights. Petitioner’s husband is an undertrial prisoner and is a convict under two cases, on the file of Principal District and Sessions Court, Pudukottai, jail authorities are said to be precluded from granting leave to detenu under Section 35 of Tamil Nadu Suspension of Sentence Rules, 1982.

While placing reliance on the decision of Madras High Court, Madurai Bench in Meharaj v. State, 2018 1 HCC (Mad) 150 in which it was stated that:

“Conjugal visit leads to strong family bonds and keep the family functional rather than the family becoming dysfunctional due to prolonged isolation and lack of sexual contact.”;

the High Court considered the above-stated decision to be appropriate and concluded to grant leave to the petitioner’s husband for the purpose of conjugal visit for a period of two weeks subject to certain conditions. [P. Muthumari v. Home Secretary,2018 SCC OnLine Mad 3304, dated 26-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of H.K. Hanjura, J., allowed a Writ Petition filed against the order of detention passed by the respondent authorities.

The petitioner was already in custody in connection with a criminal case and this formed the basis for passing of a detention order against the petitioner.

The Court, in this case, observed that the custody of petitioner in the concerned criminal case had been converted into detention as per the impugned order. Such an order was passed on an assumption that if the detenue applies for bail then he might succeed but if it was the case then the detaining authority could have resisted the bail application itself instead of taking the extreme step of passing a detention order. The respondent authorities could have taken recourse to the ordinary law of the land.

The Court held that life and liberty of citizens of the State are of paramount importance and 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. The Court allowed the petition and quashed the order of detention passed by the respondent authorities. [Mohammad Younis Sofi v. State of J&K, 2018 SCC OnLine J&K 669, Order dated 24-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. allowed an appeal filed against the decision of Bombay High Court whereby it had allowed a writ of habeas corpus directing the appellants to produce detenu under lawful custody.

One Mukesh Pandian, a private detective, was arrested by the police on information that he was obtaining and selling call record details of different people. In the course of investigation, Rizwan Alam Siddique (detenu) was also arrested on suspicion of obtaining call records of the wife of bollywood actor Nawazuddin Siddique. The said Rizwan was not cooperating in the investigation and in fact was found destroying evidence, pursuant to which he was arrested and produced before jurisdictional Magistrate who sent him to police custody. The respondent, wife of the detenu, rushed to the High Court and filed a habeas corpus writ  petition for production of her husband before the Court and setting him at liberty. The High Court, vide the order impugned, allowed the petition and set the detenu at liberty. The High Court also made scathing observations against the police officials concerned. Against the said order, the appellants filed the instant appeal.

The Supreme Court perused the record and considered submissions made by the parties. The Court relied on its earlier decisions in Saurabh Kumar v. Jailor, (2014) 13 SCC 436 and Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 and observed that the question — ‘whether a writ of habeas corpus can be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation?’ — was no more res integra. In Court’s opinion, no writ of habeas corpus could have been issued in such circumstances. When the writ was allowed, the detenu was under lawful custody pursuant to the orders of the Magistrate. The petition was filed without challenging the order of the Magistrate. It was not a case of continued illegal detention. Furthermore, since the petition was not maintainable in the first place, the High Court should have been loath in entering into the merits of arrest and recording scathing observations against the police officials. Therefore, the order impugned was set aside. The detenu had already been released after the order, so the Investigating Officer was directed to proceed strictly in accordance with law. The appeal was disposed of in the terms above. [State of Maharashtra v. Tasneem Rizwan Siddique,2018 SCC OnLine SC 1348, dated 05-09-2018]

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of V. Chitambaresh & K.P. Jyothindranath, JJ., held that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India takes within its sweep, the right of a person to live as a transgender as was also previously held by Hon’ble Apex Court in National Legal Services Authority v. Union of India (2014) 5 SCC 438.

The mother (petitioner) of the person (detenu) had in this habeas Corpus petition alleged that her son was not a Transgender mentally or psychologically and a group of transgender persons has illegally detained him. She had claimed that he had “mental aberration of mood disorder” and lamented his sight in the robes of a woman and his being rechristened as ‘Arundhathi’ by the group.

In the medical examination ordered by the Court, it was revealed that the person suffered from no mental disorder. The Transgender person, who later referred himself as a female also appeared before the Court and told the Court that she was living as per her wishes and had identified herself as a woman from the age of 11. Based on the medical report, the Court noted that though the alleged detenu has normal male genitalia, she fits the label ‘transgender’ on external examination as per the Diagnostic and Statistical Manual 5th Edition (2013).

The Court quoted from William Shakespeare’s play Othello the oft quoted words of Iago the villain in the Shakespeare’s play: ‘I am not what I am.’ Lastly, Court held that the detenu has undoubtedly the right to wander about or associate with likeminded people and cannot be compelled to be at his parental home. The Court, therefore, proceeded to dismiss the petition. [Tessy James v. Director General of Police, 2018 SCC OnLine Ker 2140, order dated 12-06-2018]