Jammu & Kashmir High Court
Ishitiaq Ahmad vs Ut Of J&K on 17 May, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 07.05.2024
Pronounced on: 17.05.2024
HCP No. 22/2023
Ishitiaq Ahmad .....Appellant(s)/Petitioner(s)
Aged 40 Years
S/O Mohammad Rafiq R/O
Pehalgam Sigdi Tehsil Chatroo
District Kishtwar
Th. Irshad Ahmad Reshi S/O
Nasrullah Reshi R/O Dellar Tehsil
Chatroo
Through: Mr. Zulker Nain Sheikh, Advocate.
vs
1. UT of J&K ..... Respondent(s)
Th. Principal Secretary to Govt. Home
Department Civil Secretariat
Srinagar/Jammu.
2. District Magistrate Kishtwar, J&K.
3. Superintendent of District Jail
Kishtwar, J&K.
Through: Mr. Mohd. Irfan Inqlabi, GA.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. Being aggrieved of the order of detention bearing No. 3/DM/K/PSA of 2023 dated 08.06.2023 (hereinafter to be referred as 'the order impugned') issued by the respondent No. 2 under the Public Safety Act, 1978 (hereinafter to be referred as 'the Act'), the petitioner has assailed the same on the following grounds:
2 HCP No. 22/2023
i. That the order of detention has been passed on the grounds which are stale, as no illegal activity has been attributed to the petitioner after 2019.
ii. That the petitioner has not been provided with the grounds of detention and other connected documents which disabled the petitioner to submit an effective representation against the order of detention.
2. The respondents have filed the response, stating therein that the petitioner was involved in FIR No. 47/2015 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station, Chatroo, FIR No. 103/2015 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station Kishtwar, FIR No. 213/2015 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station, Kishtwar, FIR No. 218/2017 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station, Kishtwar, FIR No. 23/2019 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station, Chatroo and FIR No. 48/2021 for commission of offences under Sections 188 RPC, and 3 PCA Act registered with Police Station, Chatroo. It is further submitted that every time the petitioner was enlarged on bail but still he did not mend his ways and continued his illegal activities. Such activities of the petitioner were found to be detrimental for the maintenance of public order in the District Kishtwar, as such, he was ordered to be detained vide order impugned. It is further submitted that the petitioner is a habitual bovine smuggler involved in illegal bovine 3 HCP No. 22/2023 smuggling and has posed a serious threat to the public order and communal harmony in the District Kishtwar. The order of detention was executed by PSI-Moin Khan and whole of the relevant material relied upon by the detaining authority was provided to the petitioner and in acknowledgement thereof, he signed the receipt. Besides, in the execution report, it is also mentioned that the contents of the detention warrant were read over and explained to the petitioner in the language which he fully understood and he also signed the execution report.
3. Mr. Zulker Nain Sheikh, learned counsel for the petitioner has submitted that the petitioner has been detained under the Act (Supra) on stale grounds, which is not permissible under law.
4. Per contra, Mr. Mohd. Irfan, learned GA appearing on behalf of the respondents has submitted that the petitioner is a habitual bovine smuggler and taking into consideration his illegal activities, he was ordered to be detained under the Act (Supra). He further submitted that while executing the order of detention, all the statutory as well as constitutional safeguards were complied with in essence by the respondents, as such, the petition deserved to be dismissed.
5. Heard and perused the record.
6. A perusal of the detention record reveals that the dossier was submitted by the SSP, Kishtwar i.e. the respondent No. 3 to the respondent No. 2 in respect of the illegal activities attributed to the petitioner, and after perusing the dossier and the material submitted along with the same, the respondent No. 2 vide order dated 08.06.2023 ordered the detention of the petition under the Act (Supra). A perusal of the grounds of detention 4 HCP No. 22/2023 formulated by the respondent No. 2 reveals that the reliance has been placed on the following FIRs:
i. FIR No. 47/2015 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station, Chatroo, ii. FIR No. 103/2015 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station Kishtwar;
iii. FIR No. 213/2015 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station, Kishtwar;
iv. FIR No. 218/2017 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station, Kishtwar;
v. FIR No. 23/2019 for commission of offences under Sections 188 RPC and 3 PCA Act registered with Police Station, Chatroo and vi. FIR No. 48/2021 for commission of offences under Sections 188 RPC, and 3 PCA Act registered with Police Station, Chatroo
7. In all the FIRs mentioned above, the allegations against the petitioner are in respect of illegal transporting the bovine animals and there is not even an iota of doubt that the petitioner has indulged in bovine smuggling but equally true is that after 05.08.2021, the petitioner has not been found to have been involved in any illegal activity as last FIR bearing No. 48/2021 5 HCP No. 22/2023 under Section 188 RPC and Section 3 of PCA Act was registered against him on 05.08.2021.
8. It is evident that there is delay in passing the order of detention as last illegal activity attributed to the petitioner pertains to the year 2021 and the order of detention order has been passed on 08.06.2023. The delay in passing the detention order renders the same illegal. Reliance is placed upon the decision of the Apex Court in "Laxhman Khatik vs State of Bengal", 1974 (4) SCC 1 wherein while considering the detention order under the maintenance of Maintenance of Internal Security Act, 1971, it has been held that prompt action in such matter should be taken as soon as the incident like those which are referred to in the grounds have taken place. It is also profitable to take note of the judgment of the Apex Court in case titled, "Saeed Zakir Hussain Malik vs State of Maharashtra", reported in (2012) 8 SCC 233. Relevant paragraph Nos. 27 and 28 read as under:
"27) As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned.
28) It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case.
We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and 6 HCP No. 22/2023 serving the same on detenu, there is no need to go into the factual details."
9. The delay of 22 months in passing the order of detention from the last illegal activity attributed to the petitioner itself vitiates the order of detention.
10. In view of what has been discussed above, this Court is of the considered view that the impugned the order of detention bearing No. 3/DM/K/PSA of 2023 dated 08.06.2023 issued by the respondent No. 2 is not sustainable in the eyes of law and as such, the same is quashed. The petitioner is directed to be released forthwith provided that he is not required in any other case.
11. Detention record has been handed over to Mr. Mohd. Irfan Inqlabi, GA, in the open court.
(RAJNESH OSWAL) JUDGE Jammu 17.05.2024 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. KARAM CHAND 2024.05.17 14:39 I attest to the accuracy and integrity of this document