Madan Lal v. State Of Jammu And Kashmir And Ors.

1. The petitioner's son, Deepak Kumar, has been detained in pursuance of an order of detention, passed by District Magistrate, Srinagar, vide order No. DMS/PSA/70 dated 18-10-2002 and in order to prevent him from acting, in any manner, prejudicial to the maintenance of public order under section 8 of the j&k public safety act, 1978 (hereinafter for short referred to as "the act") the detenue has been detained for a period of 12 months and lodged in Central Jail, Kot Bhalwal, Jammu, vide Government Order No. Home/PB-V/2417 of 2002 dated 12-12-2002. The order of detention passed by the detaining authority has been challenged by the detenue on variety of grounds, enumerated in para 5 of the petition, which are detailed as under:

"(a) That the grounds on the basis of which the son of the petitioner has been detained are not covered by the grounds mentioned in Section 8 of the Public Safety Act of 1978. A photo copy of chapter IV, Section 8 of the Public Safety Act is attached herewith for perusal of the Hon'ble court as Annexure "B".

(b) That no satisfaction has been recorded by the detaining authority before passing the order, recording of satisfaction by the detaining Authority is a condition precedent for issuing the detention order which is not available in the case of the son of the petitioner. The bare perusal of the grounds of detention as well as the order no where states that the detaining authority i.e. the respondent No. 2 has recorded its satisfaction before passing the order, thus the order of detention being contrary to the grounds of detention contained under Section 8 of the Public Safety Act is liable to be quashed and the son of the petitioner is entitled to be set at liberty.

(c) That the order of detention has not been approved by the Govt. till date, the order has not been sent for approval to the Government by the respondent No. 2, forwarding the order for the approval of the Government and approval of the Government is a condition precedent for detaining an individual under the Public Safety Act, thus in absence of the approval of the Government, the order is liable to be set aside.

(d) That the detention order does not mention the period for which the son of the petitioner has been detained. Mentioning of the period is also one of the requirements for detaining a person under the Public Safety Act. The bare perusal of the order no where mentions that for how long the son of the petitioner has been ordered to be detained under the Public Safety Act. This shows the non-application of mind of the detaining authority before passing the order. It appears that the respondent No. 2 has not passed the order himself nor has gone through the record, the order appears to have been passed by the Senior Superintendent of Police, Srinagar and the respondent No. 2 has simply affixed his signatures without going through the record, the grounds of detention and without going through Section 8 of the Public Safety Act, thus the order suffers from illegalities and irregularities which are apparent on the face of the record, thus the order is liable to be quashed.

(e) That no references were made to the Advisory Board constituted under Section 14 of the Public Safety Act Non-making of a reference to the Advisory Board is fatal, reference to the Advisory Board is a condition precedent. The respondent No. 2 was required to make a reference to the Advisory Board which the respondent No. 2 has not done, neither the same is evident from the detention order, thus the order of detention being illegal as such is liable to be set aside.

(f) That the grounds of detention are vague, no sufficient material has been supplied as well as attached with the grounds of detention indicating the nature and details of the allegations. Mere mentioning the section of the judicial code are not sufficient. Even otherwise those offences are punishable under the judicial law, thus the issuance of the detention order in such a case is legal and is liable to be quashed. Not only this, the order is in violation to Article 22 Clause 5 of the Constitution of India because the son of the petitioner in absence of the details of the allegations has failed to make representations to the Government. The son of the petitioner was entitled to each and every detail of the offences in which he has been falsely implicated which details have not been supplied to the son of the petitioner, as such the order of detention is liable to be quashed.

(g) That disturbance of public order is a condition precedent before invoking the provisions of Section 8 of the Public Safety Act, the detaining authority was required to record the satisfaction regarding the disturbance of public order which satisfaction the detaining authority has not record. Even otherwise, there is no question of disturbance of public order. The allegations contained in the grounds of detention order that the son of the petitioner has formed a gang so as to deal with the sale and purchase of the stolen vehicles but the grounds of detention do not contain the name of any of the person with whom the son of the petitioner has formed the gang, the name of those persons are required to be mentioned in the grounds of detention, thus the allegations are vague and the grounds of detention are liable to be quashed. The detention order issued by the respondents is a punitive measure and by way of punishment which is not warranted under the Public Safety Act. There is no material wherefrom it can be gathered that there is a disturbance of public order, thus the detention of the son of the petitioner is liable to be quashed."

2. As disclosed in the grounds of detention, prepared by the District Magistrate, Srinagar, the detenue was a Sub-Inspector of Police and after having been found that he secured the service on false qualification certificates, was discharged from the service. It is further alleged that the detenue became ring leader of an organized gang of criminals involved in inter-state crimes. He also came in contact with a notorious car lifter, Irshad Ahmad Khan, and indulged in car lifting and preparation of false documents in respect of stolen cars. Irshad Ahmad Khan already stands detained under PSA. Various criminal cases stood registered against the detenue under: (i) FIR No. 445/2002 under Sections 420, 467, 468, 471, 211 RPC by Police Station, Gandhi Nagar, Jammu; (ii) FIR No. 21/2001 under Sections 420, 467, 468, 471 RPC by Police Station Crime Branch, Jammu; (iii) FIR No. 55/2002 under Sections 382, 201 RPC by Police Station, Zadibal and (iv) FIR No. 65/2002 under Sections 392, 342 RPC by Police Station, Batmaloo. The detenue was found involved in one-way or the other in all these cases, in regard to the sale and purchase of 20 stolen vehicles. The petitioner was arrested on 18-07-2002 in case under FIR No. 55/2002 in connection with snatching of a Maruti Car from one Farooq Ahmad Bhat. The detaining authority, after having been satisfied that with a view to prevent the detenue from indulging in and repetition of his activities, found that it was necessary to detain him in preventive custody and made an order of detention under Section 8 of the Act, on 18-10-2002. Reference was made by the Government to the Board to give its advice for the sufficient cause for the detention of the detenue. The Board, after having examined the record and heard the detenue, found that the activities of the detenue were prejudicial to the maintenance of public order and, thus, justified the District Magistrate, Srinagar in ordering his detention under the PSA.

3. Mr. B.S. Salathia, Additional Advocate General, appeared on behalf of the respondents and submitted that the period of detention of 12 months has since expired and the detenue stands released. Mr. V.R. Wazir, learned Counsel appearing for the petitioner, however, submitted that since the order has worked out very harsh against the detenue, he addressed the arguments on the validity of the order of detention on the grounds of challenge, enumerated in the petition and referred above.

4. It is not in dispute that the detenue has since been released after having served the period of detention. If that be the position, the question relating to the validity or invalidity of the order of detention remains only academic; as in such circumstances, no consequential order is required to be passed. All the judgments relied upon and referred to, during the course of arguments, by Mr. Wazir that the Court can still take the validity or invalidity of the order of detention, notwithstanding that the detenue has served the period of detention and has already since been released, but none of the judgments deals with the proposition, directly or indirectly, and therefore, is of no avail to the petitioner and would not advance the cause of the petitioner. Even otherwise, when the detenue has been released after having served the period of detention, there remains nothing before the Court to determine and pass a consequential order under the PSA.

5. In the above view of the matter, the Habeas Corpus Petition does not survive and is disposed of as such.