Jammu & Kashmir High Court - Srinagar Bench
Mohammad Saleem Dar vs Union Territory Of J&K And Another on 6 November, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP (Crl) No. 266/2022
Reserved on: 18.10.2023
Pronounced on: 06.11.2023
Mohammad Saleem Dar ....... Petitioner(s)
Through: Mr. B.A. Tak, Advocate
Versus
Union Territory of J&K and another ....Respondent(s)
Through: Mr. Faheem N. Shah, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, the petitioner seeks quashment of Order no. DMB/PSA/06 of 2022 dated 15.04.2022, passed by District Magistrate, Budgam - respondent no. 2, (for short "detaining authority") placing the detenu namely Mohammad Saleem Dar, S/o Ali Mohammad Dar R/o Aripanthan Tehsil Berwah Budgam (for brevity "detenu") under preventive detention and directing his lodgement in Central Jail Kotbhalwal, Jammu, on the grounds made mention of therein.
2. Respondents have filed the reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of the State. The activities narrated in the grounds of detention have been reiterated in the reply/counter affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant.
3. I have heard learned counsel for parties. I have gone through the detention record attached with the file and considered the matter.
4. The case set up by the petitioner in the petition is that the detenu was initially arrested in connection with cases FIR Nos.168/2003 and 2 WP (Crl) No. 266/2022 subsequently placed under preventive detention vide Order No.18/ DMP/ PSA/ 04 dated 06.08.2004, which was challenged in HCP No. 220/2004. The said detention order was quashed vide judgement dated 05.04.2005. It is stated that the detenu was again apprehended on 13.04.2022 and shifted to Central Jail (Kothbalwal) Jammu, to be detained under preventive detention in terms of impugned order of detention. The detaining authority is stated to have relied upon alleged activities of the detenu of the year 2003 & 2004 in respect whereof FIR Nos.168/2003 & 80/2004 were registered in Police Station, Magam and Pampore in which detenu was acquitted from all charges by the competent court of law. It is stated that detenu is neither involved in any fresh FIR nor in any fresh prejudicial activity, as such, impugned detention order is in violation of Article 22(5) of Constitution of India, and deserves to the quashed. Further, the detaining authority is said to have passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are vague, indefinite, non-existent, on which no prudent man can make an effective representation against such allegations. It is further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case and the grounds of detention are replica of dossier and unequivocally reflects and shows non- application of mind on the part of detaining authority.
5. Learned counsel for the petitioner states that on number of occasions the State machineries tried to implicate the detenu in false and frivolous cases, even one of the detention orders bearing no. DHB/PSA/41 of 2005 dated 23.01.2006 has been revoked by the State Advisory Board on 24.03.2006. The material and the vital facts of acquittal in the above FIRs, and quashment/ revocation of earlier detention orders have not been placed before the detaining authority which would have influenced the mind and subjective satisfaction of the detaining authority; the detention order is passed in total vague and arbitrary manner as such, deserved to be quashed.
6. Learned counsel for petitioner also states that notwithstanding quashment of earlier detention order, respondents have again placed detenu under preventive detention in terms of impugned order of detention. His next submission is that grounds of detention, made use of by detaining authority to place detenu under preventive detention in terms of impugned order of detention, are identical to grounds of detention, made use of by detaining 3 WP (Crl) No. 266/2022 authority while issuing earlier detention order, quashed by this Court, and the same reflects non-application of mind on part of detaining authority. Learned counsel also submits that detaining authority has not given any fresh grounds of detention against detenu and even most of the incidents or facts/ grounds are taken from earlier grounds of detention and, therefore, impugned detention order is bad in law because no fresh ground has been mentioned in second detention order. Even detaining authority has not mentioned about the fact that in the FIRs, which have been relied upon by it in grounds of detention, detenu has been acquitted and even about revocation of detention order of 2005.
7. This Court, in earlier petition, viz. HCP No. 220/2004 had quashed detention order bearing no.18/DMP/PSA/04 dated 06.08.2004, while dealing with grounds of detention made use of in support of the said detention order. The same grounds could not have been relied upon for making a fresh detention order. The authoritative judicial pronouncements on the subject are that even if the order of detention comes to an end either by revocation or by expiry of the period of detention, there must be fresh facts for passing a subsequent detention order. When a detention order is quashed by the Court, issuing a high prerogative writ, like habeas corpus or certiorari, the grounds of said detention order should not be taken into consideration either as a whole or in part even along with fresh grounds of detention for drawing requisite subjective satisfaction to pass a fresh detention order because once the Court strikes down an earlier order by issuing a rule, it nullifies the entire order.
It is, thus, clear that an order of detention cannot be made after considering previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming subjective satisfaction by detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if further fresh facts, disclosed in the grounds of impugned detention order, have been considered. Reference in this regard is made to Chhagan Bhagwan Kahar v. N. L. Kalna and others, AIR 1989 SC 1234 and Ramesh v. State of GujaratAIR 1989 SC 1881. Detention order, impugned herein, is, thus, liable to be quashed as the grounds of detention, made use of by respondent no.2 while passing earlier detention order, 4 WP (Crl) No. 266/2022 subsequently quashed by this Court, have been pressed into service while passing impugned detention order.
8. Learned counsel for petitioner has rightly stated that the detaining authority has not followed the Constitutional and statutory procedural safeguards as envisaged under Article 22 (5) of the Constitution read with Section 13 of the J&K Public Safety Act, 1978. The grounds of detention are vague and non-existent in the eye of law. His further submission is that there is no nexus, proximate and live link between the allegations levelled in the grounds of detention as the last activity referred to and attributed to detenu is of the years 2003 and 2004, and that imminent threat to the security of the State could not, thus, be deduced possible and preventive detention of the detenu necessitated.
9. The question whether the prejudicial activities of a person requiring to pass a detention order is proximate to 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. Nonetheless, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case. Certainly, in the present case, there is no cogent explanation coming to fore from perusal of the grounds of detention with reference to the live-link between the prejudicial activities and the purpose of the detention and resultantly the impugned detention order is liable to be quashed. In this regard reference is made to the law laid down in T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajinder Arora v. Union of India and others (2006) 4 SCC 796].
10. The law on the subject is settled. If detaining authority is apprehensive that in case detenu is released on bail he may again carry on his criminal activities, then in such situation, the authority should oppose the bail application and, in the event, bail is granted, the authority should challenge such a bail order in the higher forum and that merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed. Para 24 of 5 WP (Crl) No. 266/2022 judgement passed in Sama Aruna v. State of Telangana and another, AIR 2017 SC 2662, reads as under:
"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 2002-2003. The detenu 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 detenu was released on bail he would again carry on 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 Nation Security Act should not ordinarily be passed."
11. It may be mentioned here that delay in passing order of detention from the date of proposal snaps the "live and proximate link" between prejudicial activities and purpose of detention and failure on the part of detaining authority in explaining such delay in any manner vitiates detention. If detaining authority remains oblivious of the fact that in the criminal case(s) relied upon by it for purpose of passing order of detention the detenu was ordered to be released on bail by the court or discharged/acquitted by the court of law and do not make any whisper about such a fact in grounds of detention, such omission and non- mention of the important fact again vitiates the order of detention.
12. The Supreme Court in Asha Devi v. Additional Chief Secretary to the Government of Gujarat and Anr., 1979 Crl LJ 203, pointed out that:
"... if material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal."
13. In Sk. Nizamuddin v. State of West Bengal, (1975) 3 SCC 395, the Supreme Court observed as under:
"We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. The circumstance might quite possible have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the 6 WP (Crl) No. 266/2022 view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate."
14. From the above decisions, it emerges that the requisite subjective satisfaction, the formation whereof is a condition precedent in passing a detention order will get vitiated if material or vital facts having bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind, are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order.
15. When in the present case, grounds of detention are examined, it would nowhere mention whether detenu was after his apprehension in connection with case FIRs nos. 168/2003 and 80/2004, released on bail and/or thereafter acquitted from the said cases, which reflects and depicts non-application of mind on the part of detaining authority. Thus, there is no compelling reason coming forth from the grounds of detention to show that detenu was likely to be released from custody in near future and taking into account the nature of antecedent activities of detenu, it was likely that after his release from custody the detenu may indulge in prejudicial activities and it was necessary to detain him in order to prevent him from engaging in such activities. As a result whereof, impugned order is vitiated and requires to be quashed, as such.
16. For the reasons discussed above, the petition is disposed of and detention Order no. DMB/PSA/06 of 2022 dated 15.04.2022, passed by District Magistrate, Budgam is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.
17. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul) Judge Srinagar 06.11.2023 (Qazi Amjad, Secy) Whether the order is reportable: Yes/No.