Jammu & Kashmir High Court - Srinagar Bench
Shakeel Ahmad Bhat vs Union Territory Of J&K And Ors on 4 June, 2021
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
1
506 AN
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
(Through V.M)
Case no. ([WP Cri) No. 165/2020
Reserved on 3rd June 2021
Pronounced on 04.06.21
Shakeel Ahmad Bhat
... Petitioner
Through: Mr. I. Sofi, adv.
vs.
Union Territory of J&K and ors
.....Respondents.
Through : Mr. Mir Suhail, AAG
Coram: Hon'ble Mr. Justice Ali Mohammad Magrey.
JUDGMENT
1. Detenu, Shakeel Ahmad Bhat, son of Ghulam Ahmad Bhat resident of Moti Mohalla, Shalimar, Srinagar through his wife seeks quashment of detention order no. Divcom/k/148/2020 dated 05.10.2020 purporting to have been passed by Divisional Commissioner, Kashmir, Srinagar, with consequent prayer for release of the detenu forthwith.
2. Before adverting to the grounds of challenge taken by the petitioner to assail the impugned order, it would be appropriate to briefly notice the grounds of detention on the basis of which the preventive detention of the petitioner has been ordered.
3. It is submitted that the preventive detention has been ordered by the detaining authority strictly in terms of section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic substances Act 1988 with a view to prevent detenu from indulging in such activities. The grounds of detention narrates whole sequence of events leading to the involvement of the petitioner in the aforesaid FIR no. 05/2019. The detaining authority, on the basis of dossier of activities supplied by the police and after going through the allegations contained in said FIR, arrived at satisfaction passed the detention on the ground that there was every likelihood, that the detenu may indulge in subversive activities if he is admitted to bail by the competent Court and, therefore, it was imperative to put him under preventive detention. It is in the aforesaid backdrop, the impugned order of detention is passed by the detaining authority.
24. The petitioner has assailed the impugned order of detention, inter alia, on the following grounds:
(I) That the allegations in the grounds of detention are vague and indefinite and no prudent man can make an effective representation against these allegations;
(II) That the detention order has been based after a period of more than one and half year, therefore, in the absence of any explanation with regard to delay, the detention order is vitiated and cannot sustain (III) That the relevant material, like copy of dossier, FIR, statements under Section 161 and 164-A Cr. P. C, seizure memos etc. etc. which have been relied upon in the grounds of detention, was never supplied to the detenu to enable him to make an effective representation nor he was made aware of his right to make representation against his detention to the detaining authority or the government.
5. Learned counsel for the petitioner has reiterated the aforesaid grounds while addressing his arguments.
6. On being put on notice, the detaining authority has filed a detailed reply affidavit and has justified the detention of the detenu on the ground that the activities in which the detenu was indulged are highly prejudicial to the public at large of the Union Territory and, therefore, his remaining at large is a threat to the public at large of Union Territory. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by the detaining authority. The factual averments that the detenu was not supplied with the relevant material relied upon in the grounds of detention have been refuted. It is submitted 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 and that the detenu never made any representation either to the detaining authority or to the government.
7. To counter the stand of the detaining authority projected in the reply affidavit, the detenu has filed rejoinder affidavit and has pleaded that on the date when detention order was passed by the detaining authority, he was already admitted to bail by the competent court of jurisdiction, whereas the detaining authority, 3 in the grounds of detention, has indicated that there is every likelihood of the detenu being admitted to bail, though he was already admitted on bail. It is, thus, submitted that the impugned order of detention is vitiated for total non-application of mind on the part of detaining authority.
8. Having heard learned counsel for the parties and perused the record, I find substance in the submission of learned counsel for the detenu that no sufficient material was provided to the detenu for defending his detention order. The detenu has been detained under preventive detention for his alleged involvement in subversive activities which led to the registration of FIR No.05/2019, the detenu was admitted on bail by the competent court of jurisdiction but instead of releasing he was detained under Public Safety Act, interestingly, did not bring the factum of detenu having been released on bail in FIR No.05/2019, to the notice of detaining authority. It is because of this omission on the part of Senior Superintendent of Police, the detaining authority has categorically stated in the grounds of the detention that the detenu was released on bail and facing trial in the said FIR. The detaining authority has also noted that there was well-founded apprehension based on report received from field information that the detenu, if released on bail, would again indulge in subversive activities.
9. In view of aforesaid, it is clear that either there is lapse on the part of police to provide all relevant material to the detaining authority or there is lack of application of mind on the part of detaining authority. The fact, however, remains that at the time of passing of the detention order, the detaining authority was not aware whether the detenu was in police/judicial custody or he stood released on bail. It is difficult for me to say as to what impact it would have made on the satisfaction of the detaining authority but it cannot be denied that it was a relevant information that was required to be produced before the detaining authority to enable it to derive subjective satisfaction with regard to necessity of placing the detenu under preventive detention.
10. The non-application of mind by the detaining authority is 4 fatal and goes to the root of the detention and, therefore, is sufficient to vitiate the impugned order of detention. For that reason, there is hardly any necessity to consider other grounds of challenge urged by the learned counsel for the petitioner.
11. In view of the aforesaid position, this petition is allowed and the impugned order of detention Divcom/k/148/2020 dated 05.10. 2020 is quashed. The Detenu, Shakeel Ahmad Bhat, son of Ghulam Ahmad Bhat resident of Moti Mohalla, Shalimar, Srinagar is directed to be released from preventive custody forthwith. No order as to costs.
12. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance by the mode available.
Disposed of.
(Ali Mohammad Magrey) Judge Srinagar, 04.06..2021 Syed Ayaz Hussain, Secretary
i) Whether order is speaking: Yes/No.
ii) Whether order is reportable: Yes/No. SYED AYAZ HUSSAIN 2021.06.04 14:47 I attest to the accuracy and integrity of this document