Jammu & Kashmir High Court - Srinagar Bench
Unaib Ul Islam S/O Ishfaq Ahmad Teli vs Union Territory Of Jammu & Kashmir ... on 13 September, 2024
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 780/2022
Reserved on: 04.09.2024
Pronounced on: 13.09.2024
Unaib ul Islam S/O Ishfaq Ahmad Teli
R/O Khanpora Tehsil & District Baramulla
...Petitioner(s)
Through: Mr. Irshad Ahmad Wani, Advocate.
Vs.
1. Union Territory of Jammu & Kashmir through
Financial Commissioner (ACS) to Government,
Home Department, Civil Secretariat Jammu.
2. District Magistrate, Baramulla.
...Respondent(s)
Through: Mr. Bikramdeep Singh, Dy.AG.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. In exercise of powers under Section 8(a) of the Jammu & Kashmir Public Safety Act, 1978 (for short 'the Act'), respondent No.2 - District Magistrate Baramulla (for short 'Detaining Authority') has passed the Detention Order No. 07/DMB/PSA/2021 dated 22.09.2021 (for short 'impugned order'), in terms whereof the petitioner Unaib ul Islam S/O Ishfaq Ahmad Teli R/O Khanpora Tehsil & District Baramulla (for short 'the detenue') was ordered to be detained.
2. The detention of the detenue has been challenged inter alia on the grounds that the allegations leveled in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention on such grounds is Page |2 unjustified and unreasonable; that on 19.08.2021, the detenue was arrested by the police without any reason and justification and was kept in illegal custody; that the detenue was implicated in a case registered vide FIR No. 186/2021, however, in that case he was admitted to bail on 25.09.2021; that the detenue was subsequently detained under the provisions of Public Safety Act; that the relevant material has not been furnished to the detenue and whatever material was furnished to him, it was not possible to make a purposeful representation, thus, the right of the detenue under Article 22 of the Constitution stands violated.
3. It is contended that the order of detention has neither been approved by the Government nor the detention order along-with documents was submitted or referred to the Government for formulation of opinion and confirmation within statutory period, as envisaged under the Act, therefore, the detention of the detenue is not only illegal but offends Article 21 and Article 22(5) of the Constitution of India.
4. It is argued by the learned counsel for the petitioner that the grounds of impugned detention order is a verbatim copy of the dossier and no other material has been considered by the detaining authority which speaks volumes about the non-application of mind on the part of the detaining authority which does not justify the preventive detention and the detention order requires quashment.
5. Respondents, pursuant to notice, have filed their reply affidavit, wherein it is stated that the order of detention was passed by the Detaining Authority after being satisfied on the basis of the material which was made available by the police; that it was necessary with a view to prevent the detenue from acting in any manner prejudicial to the maintenance of security of the State, to place him under preventive Page |3 detention; that the detention of the detenue has been ordered strictly in accordance with the provisions of the Act and the procedural safeguards prescribed under the provisions of the Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. It is further submitted that the grounds of detention transpire the activities of the detenue which, on the face of them, are highly prejudicial to the security of the State and, therefore, there was no option left to the detaining authority but to order detention of the detenue under the Act to prevent him from those activities.
6. Heard learned counsel for the parties, perused the material available on record and considered.
7. On going through the grounds of detention, during perusal of detention record, it comes to fore that the detenue allegedly involved in unlawful activities and harbouring anti-national sentiments was guilty of throwing petrol bomb on security forces vehicle, near Khanpora under the jurisdiction of Police Station Baramulla; that the aim and objective of the detenue was to disturb the maintenance of public order and to create an atmosphere conducive to propagation of antinational ideology; that the detenue has developed close contacts with various anti-social elements of the area, who have been found involved in illegal activities; that the acts of the detenue have made him a potential threat to the maintenance of the security of the State; that the Police Station Baramulla received information through reliable sources that in Khanpora area some miscreants, which include the detenue, lobbed a petrol bomb on the security forces vehicle with intention to kill them; that this incident led to registration of case FIR No. 186/2021 under Sections 13 UA(P) Act and 307 IPC in Police Station Baramulla, Page |4 resulting into arrest of the detenue for the commission of offences of the said case on 19.08.2021; that in order to prevent the detenue from indulging in the activities prejudicial to the security of the State, it was found necessary to detain him under the provisions of J&K Public Safety Act.
8. The petitioner has urged a number of grounds to challenge the impugned detention order, however, during the course of arguments learned counsel for the petitioner has laid emphasis on two grounds; firstly, that the detention order has been passed on vague grounds and the relevant material had not been supplied to the detenue, as such, no meaningful and effective representation could be made by the detenue; secondly, that the impugned detention order was passed against the detenue when he was already in the custody in a criminal case, regarding which neither any mention has been made nor any compelling reasons have been assailed so as to warrant passing of the impugned detention order, which renders the impugned order having been passed with non-application of mind.
9. Resort to preventive detention has to be taken only in cases where there is an urgent need to detain a person so as to prevent him from indulging in activities which are prejudicial to the maintenance of public order or security of the State. When there is unsatisfactory and unexplained delay in executing the order of detention, such delay would throw considerable doubt on the genuineness of the subjective satisfaction recorded by the detaining authority. This would lead to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenue.
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10.The Apex Court in the case of Manju Ramesh Nahar vs. Union of India & Ors., reported as AIR 1999 SC 2622, while considering a similar situation observed as under:-
"This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the satisfaction of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent."
11.On perusal of the detention order, it transpires that the detaining authority had passed the impugned detention order on the basis of alleged facts that the detenue was harboring anti-national sentiments and was guilty of throwing petrol bomb on the security forces vehicle near Khanpora under the jurisdiction of Police Station Baramulla on 17.08.2021 with an object to disturb the maintenance of public order and create the atmosphere conducive to propagation of anti-national ideology and that he had developed close contacts with various anti- national elements of the area who have been found involved in illegal activities and that the detenue had been arrested in a case vide FIR No. 186/2021 registered in Police Station Baramulla for the commission of offence under Sections 307 IPC and 13 UA(P) Act; that the detenue was under judicial remand in that case, however, there was every likelihood of his being admitted to bail as he had laid bail application in this behalf before the competent court and on being released there was well founded apprehension that he will again involve in similar Page |6 activities, which are prejudicial to the maintenance of the security of the State.
12. The contention of learned counsel for the petitioner that the detenue has been detained under the preventive custody on vague grounds, is apparent on the face of the detention record, as except reference to the sole FIR No. 186/2021 registered in Police Station Baramulla, no other fact has been detailed as to how the detenue had been harboring the anti-national and anti-social elements of his area. In this fact situation, it can be said that the detention order smacks of details so as to enable the detenue to file meaningful and effective representation against his detention, which is a constitutional right available to him.
13.The other contention with regard to the fact that entire material on which the detention order had been based was not supplied to the detenue. On perusal of the detention order, it appears that SSP Baramula was directed to provide grounds of detention and material relied upon within the period of five days from the date of his detention and as per the receipt obtained by the Executing Officer ASI Rajinder Singh, One leaf each of detention order and notice of detention, two leaves of grounds of detention, three leaves of dossier of detention, and six leaves of copies of FIR, statements of witnesses and other related relevant documents were read over to the detenue and explained to him in Urdu/Kashmiri language. Detenue was further informed that he could make representation to the Government as well as to detaining authority, if he so desires. It is therefore, apparent that the detaining authority had not specified as to which were the documents, besides the detention order, notice of detention, dossier of detention and copy of FIR, that had been supplied to the detenue. In such a situation when Page |7 except for an FIR, all other grounds were vague and whole of the material, on which the detention order was based, had not been made available to the detenue, the impugned detention order gets vitiated.
14. During the course of arguments, learned counsel for the petitioner also argued that the detaining authority cannot be said to have applied its mind to the case of the petitioner to warrant his detention inasmuch as the petitioner was already in custody of the respondents and the detaining authority has not assigned any compelling reasons so as to warrant his being in preventive custody. It is borne out from the record that the impugned detention order had been passed on 22.09.2021 whereas the same was executed after an inordinate delay of 13 months on 22.10.2022, which means that there was no immediate requirement with the detaining authority to pass impugned detention order. Delay in execution of the order of detention itself is the ground which vitiates the detention order.
15. In Dulal Ray Vs. District Magistrate Burdwan, reported as (1975) 1 SCC 837, it was held by the Apex Court that if a person was serving a long time of imprisonment or was in jail custody as an under-trial and there was no immediate or early prospect of his being released on bail or otherwise, the authority would not legitimately be satisfied on the basis of his past history or antecedents that he was likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. In Vijay Kumar v. State of Jammu & Kashmir, reported as (1982) 2 SCC 43, the Apex Court has observed as under:-
"Preventive detention is resorted to, to thwart future action. If the detenue is already in jail charged with a serious offence, he is thereby prevented from acting in a Page |8 manner prejudicial to the security of the State. May be, in a given case there yet may be need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order need to be made."
16. In Alijan Mian v. District Magistrate Dhanbad, reported as (1983) 4 SCC 301, in the grounds of detention it was stated that the subject is in jail and is likely to be released on bail and that if he was allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order. After considering the said statement in the grounds of detention, the Apex Court has observed as under:-
"The position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time. In such a situation there could be no apprehension of breach of public order from the petitioners. But the detaining authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood, it was necessary to prevent them from acting in a manner prejudicial to public order."
The Apex Court in a case Binod Singh v. District Magistrate, Dhanbad Bihar, reported as (1986) 4 SCC 416, laid down:-
"If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu Page |9 might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent."
17. In another case of preventive detention during the subsisting custody, the Apex Court in a case N. Meera Rani v. Govt. of Tamil Nadu, (AIR 1989 SC 2027) summed up in Para 22 as under:
"We may summarize and reiterate the settled principle. Subsisting custody, of the detenue by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody, the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order, but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him, from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position."
18. On a careful perusal of the impugned detention order passed on 22.09.2021 and executed after a long period of 13 months on 22.10.2022, it is apparent that the detaining authority had passed the P a g e | 10 impugned detention order in a casual and mechanical manner. In such a situation of the matter the impugned detention order passed during subsisting custody of detenue, is also vitiated and is not sustainable. In view of the facts of the instant case and the law laid down by the Hon'ble Apex Court, as referred above, the order of detention, impugned herein, does not sustain and is required to be quashed.
19. Viewed thus, in the context what has been observed, analyzed and considered in the preceding paras, the instant petition is allowed and consequently the impugned order of detention bearing No. 07/DMB/PSA/2021 dated 22.09.2021, is quashed. Detenue namely Unaib-ul-Islam S/O Ishfaq Ahmad Teli R/O Khanpora Baramulla, be released forthwith, if not required in connection with any other criminal case(s) pending against him. Scanned copy of the record, as produced, be returned back to the learned counsel for the respondents.
20. Petition is, accordingly, disposed of, as allowed.
( M. A. CHOWDHARY ) JUDGE Srinagar 13.09.2024 Muzammil. Q Whether the judgment/order is reportable: Yes / No