Jammu & Kashmir High Court - Srinagar Bench
Gulzar Ahmad Bhat vs Union Territory Of J&K And Ors on 7 November, 2024
Author: Puneet Gupta
Bench: Puneet Gupta
Serial No. 19
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 149/2024 in
WP (Crl) No. 186/2023
CM No. 3444/2024
Dated: 7th of November, 2024.
Gulzar Ahmad Bhat
... Appellant(s)
Through: -
Mr Wajid Mohammad Haseeb, Advocate.
V/s
Union Territory of J&K and Ors.
... Respondent(s)
Through: -
Mr Ilyas Nazir Laway, Government Advocate with Mr Younis Hafiz, Assisting Counsel.
CORAM:
Hon'ble Mr Justice Atul Sreedharan, Judge Hon'ble Mr Justice Puneet Gupta, Judge (JUDGMENT) Atul Sreedharan-J (Oral):
01. The Present Letters Patent Appeal (LPA) has been preferred by the Appellant herein, who is aggrieved by the dismissal of his Habeas Corpus Petition by the learned Single Judge of this Court (hereinafter referred to as "the Writ Court") vide Judgment dated 30th of May, 2024.
02. The said Judgment passed by the Writ Court has been challenged by the Appellant on the ground that the allegations levelled against him in the Order of detention are vague and no specific particulars with regard to place, time and date are given and that no opportunity is given in the grounds of detention to give a specific factual denial.
LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 2 of 11
03. Mr Wajid Mohammad Haseeb, the learned Counsel appearing for the Appellant, has argued before this Court that not a single FIR has ever been registered against the Appellant, though the grounds of detention mention prohibitory proceedings against the Appellant under Section 107 of the Code of Criminal Procedure (Cr. P. C.), where he was bound over for keeping good behaviour. Learned Counsel for the Appellant has further argued that there are no allegations that the Appellant has ever violated the bond for keeping good behaviour and that there was no forfeiture of the bond amount. In other words, learned Counsel for the Appellant has argued that the existence of the bond for good behaviour and its non-forfeiture goes to reflect that the Appellant was keeping good behaviour, as desired by the Respondents and was not in violation of the bond and, therefore, there were no grounds to justify his detention under the Jammu & Kashmir Public Safety Act, 1978 (for short "the Act of 1978"). It has also been argued by the learned Counsel for the Appellant that the detention was based only on the grounds of unverifiable material, which are no more than allegations and do not raise even a strong suspicion against the Appellant. It has further been argued that the allegations are without any factual material to support them. Learned Counsel has further argued that there is non-application of mind on the part of the detaining authority as the execution order gives details of the FIR and statements of the witnesses having been given to the Appellant, along with other documents, when as a matter of fact, it is clear that no FIR has ever been registered against the Appellant and, therefore, the question of any 161 statements of witnesses also do no arise, which go to reveal that the execution order, itself, was a cyclostyled document on which the Appellant was made to sign.
04. Per Contra, Mr Ilyas Nazir Laway, the learned Counsel appearing for the Respondents, has argued that there is sufficient material for the detaining authority to arrive at the subjective satisfaction that the detention of the Appellant was essential. It has further been argued that there is sufficient evidence to show that all the material relied upon by the detaining authority has been supplied to the detenue and those documents LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 3 of 11 alone have been considered by the detaining authority. The receipt of those documents has been acknowledged by the detenue as he has signed the order of execution, in which details of the documents are given. Learned Counsel for the Respondents has further drawn the attention of this Court to Section 10-A of the Act of 1978, according to which, an Order of detention is not rendered invalid merely because one or some of the grounds are vague, non-existent, not relevant, not connected or proximately connected to the detenue or invalid for any other reason whatsoever. On the basis of the said reference to Section 10-A of the Act of 1978, the learned Counsel for the Respondents has argued that even if it is held by this Court that one or some of the grounds were vague, that by itself would be inadequate to set aside the order of detention under the Act of 1978, where the other grounds of detention may justify the detenue being held in preventive detention. It has also been argued on behalf of the Union Territory that though the Appellant may have been bound over under Section 107 of the Code of Criminal Procedure (Cr. P. C.) and which has been considered by the detaining authority in the grounds of detention, the same does not preclude the Union Territory from taking the detenue into detention under the provisions of the Act of 1978, which is an independent Act giving the detaining authority the power to detain the Appellant, where it has arrived at the subjective satisfaction that such detention is necessary in the larger good of the State. He has further argued that this Court should not sit over the subjective satisfaction of the detaining authority as a Court of appeal. Further, it has been submitted that the grounds of detention specifically establish the association of the Appellant with a proscribed Organization for whom he was an Over Ground Worker (OGW) and also that the instances mentioned in the grounds of detention are proximate in time to the order of detention. Lastly, the learned Counsel for the Appellant has argued that the detention order has been passed in the larger interest of the society, which must prevail over the personal liberty of the individual.
05. Heard the learned Counsel for the parties and perused the record of the case.
LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 4 of 11
06. The grounds of detention are at Page No.41 and marked as Annexure-II to the appeal. It is necessary to deal with the same in order to appreciate whether there has been application of mind on the part of the detaining authority, while ordering prevention detention of the Appellant.
07. The grounds of detention discloses that the Appellant was working as a Carpenter and that he had developed friendship with some Over Ground Workers (OGWs), including Rayees Ahmad Malik, Danish Mushtaq Dar, Kifayat Abdullah Lone, Latief Hassan Lone and Suhail Ahmad Ganai and that the said persons motivated the Appellant to work for the Lashker-e-Toiba (hereinafter referred to as "LeT") as an Over Ground Worker (OGW). The said ground does not mention the material on the basis of which the detaining authority has arrived at the finding relating to the association of the Appellant with the aforementioned persons or the Organization. In the absence of such material, this part of the grounds of detention is merely an allegation.
08. Thereafter, the grounds of detention continues by alleging that the Appellant was introduced to a hardcore LeT terrorist Commander by the name of Riyaz Ahmad Dar alias Khalid alias Sheeraz, who is stated to have briefed the Appellant about the plans and targets of the LeT terrorist outfit. Once again, the same is merely an allegation. In the grounds of detention, there is no reference to the material/ evidence on the basis of which the detaining authority has arrived at this finding.
09. The grounds of detention further discloses that the Appellant is the brother-in-law of one Jehangir Ahmad Ganaie, who was later encountered. It further alleges that the Appellant gradually became a hardcore fundamentalist and sympathizer of terrorists and provided all logistical support like food, shelter and information to the terrorists operating in the area. Once again, this is an allegation. It does not disclose the material or the time or the manner in which the Appellant is stated to have become a hardcore fundamentalist and sympathizer of terrorists. There are no details given with regard to the date, time and place when the Appellant is alleged to have given logistical support like food, shelter and LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 5 of 11 information to the terrorists operating in his area or the information on the basis of which this allegation is based.
10. Thereafter, the grounds of detention mentions that the Appellant, by nature, is inclined to support terrorists in perpetrating various kinds of anti-national and subversive activities in the area as well as in District Pulwama. Once again, this is a vague ground/ allegation. It does not support itself with any material to show as to how the detaining authority arrived at the subjective satisfaction that the Appellant was "inclined to support terrorists" and what are the various instances of anti-national and subversive activities committed on account of the assistance given by the Appellant.
11. In the grounds of detention, it is further alleged that the Appellant is among the reliable and close sources of active LeT Commander Riyaz Ahmad Dar. Once again, there is no mention of the material on the basis of which the detaining authority has arrived at this conclusion. Therefore, the same is only reduced to an allegation.
12. The grounds of detention further alleges that the Appellant has been in contact through social media with Riyaz Ahmad Dar, but has given no details with regard to the particular social media platform, whether it be Facebook, Instagram or any such other social media platform and neither has it mentioned about the social media posts or reproduced the same posted by the Appellant in support of the aforementioned Riyaz Ahmad Dar.
13. The next ground of detention is that the Appellant has been instigating common youth towards terrorism at the behest of said Riyaz Ahmad Dar. This ground does not mention whether the same has been arrived at by the detaining authority on the basis of statements/ complaints given by any of the youth in the vicinity against the Appellant on the grounds of anonymity with regard to date, place and time, when the Appellant had allegedly instigated such youth towards terrorism. Thus, the said ground also suffers from vagueness.
LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 6 of 11
14. The next ground alleged against the Appellant is with regard to the logistical support that he has given to the terrorists as an Over Ground Worker (OGW) and also providing real time information about the movement of security forces to the terrorists operating in the area. Once again, the said ground of detention raises the question of when, where and on what basis the said subjective satisfaction has been arrived at by the detaining authority.
15. The next ground is that the Appellant is a sympathizer of terrorists and that he has been found responsible for each and every terrorist activity being carried out within the jurisdiction of Kakapora and beyond. No ground could be more vague than this. When the detaining authority states that the Appellant was found responsible for each and every terrorist activity in that area, it should have also explained as to why no FIR was ever registered under the stringent provisions of the Unlawful Activities (Prevention) Act (UAPA) against the Appellant. It has also failed to give the material or the basis on which such an allegation has been levelled against the Appellant.
16. The next ground is that the Appellant is a member of the Lashker-e-Toiba (LeT) and "invariably has been aiding and abetting terrorist activities carried out by the terrorists in and around the Pulwama area". Once again, no details with regard to which of the terrorist activities were abetted by the Appellant with specific reference to date, place and time have been given.
17. It is also one of the grounds that the detaining authority has received discrete reports from "sister agencies" which reveal that the Appellant has been in constant touch with terrorists operating in the area, for whom the Appellant was facilitating movement from one place to another through "unconventional routes" to prolong their sustenance. This ground, too, does not disclose which are these "sister agencies" and what were the reports of these "sister agencies", without disclosing the source. The execution report also does not disclose that any report of the "sister agencies" was ever given to the Appellant.
LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 7 of 11
18. These are the prominent allegations/ alleged material collected by the Police and given to the detaining authority on the basis of which the detaining authority has formed its subjective satisfaction. Admittedly, there is no FIR that has been registered against the Appellant. The fact remains that the Appellant was bound under Section 107 of the Code of Criminal Procedure (Cr. P. C.) and that it is also undisputed that he never violated the terms of the bond and, therefore, was deemed to be in good behaviour on the date when the impugned Order of detention was passed against him. Though, this Court is in agreement with the learned Counsel for the Union Territory that the prohibitory order/ bond under Section 107 of the Code of Criminal Procedure (Cr. P. C.) is still in existence, the same does not preclude the Act of 1978 being applied against the detenue. However, what is relevant is that in such a case, the detaining authority must give strong reasons as to why the detention of the detenue was essential, while it is undisputed that the detenue was keeping good behaviour pursuant to being bound over under Section 107 of the Code of Criminal Procedure (Cr. P. C.). The absence to give such a reason, which may be an overriding concern to take a person under detention, would reflect the non-application of mind and render the subjective satisfaction of the detaining authority questionable.
19. The grounds of detention are undoubtedly vague as no verifiable material was placed before the Appellant to give precise rebuttal to the grounds of detention. Where the grounds of detention can only elicit a reply which merely refutes the allegation without giving an opportunity to the detenue to give a precise rebuttal based upon specific allegation supported by material, the same would reflect vagueness in the grounds of detention, as is seen in this particular case. The grounds of detention, though need not be an elaborate litany of the detenue's activities, but must, nonetheless, be accurate enough, disclosing specific circumstances and instances which would give the opportunity of specific rebuttal to the detenue and also enable this Court, under its powers of judicial review, to appreciate that a prima facie case has been made out against the detenue.
LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 8 of 11 Once again, this Court reiterates that mere allegation/s in the grounds of detention is not prima facie material to justify detention. The grounds of detention must traverse beyond mere allegations and must give specific instances which go to support those allegations.
20. As regards the contention put forth by the learned Counsel for the Union Territory that the material has been supplied to the detenue which has been acknowledged by the detenue by signing the order of execution is concerned, this Court finds that only nine (09) leaves, in all, were given to the Appellant. The number of allegations levelled in the grounds of detention, itself, reveals that all those allegations and the material in support of them could not have been covered in mere nine (09) leaves. The execution order also discloses that the copy of the FIR and witness statements have been handed over to the Appellant, when the undisputed case is that no FIR has been ever registered against the Appellant. Thus, it is clear that the execution order also reflects non-application of mind and casualness on the part of the detaining authority and the same, to say the least, is a cyclostyled document.
21. Insofar as the argument of the learned Counsel for the Union Territory with reference to Section 10-A of the Act of 1978 that, though one or some of the grounds may be vague or non-existent or irrelevant, the order of detention cannot be struck down as bad is concerned, this Court is in partial agreement with the learned Counsel for the Union Territory. Where some of the grounds in the grounds of detention may be vague or irrelevant, that, by itself, may not render the order of detention bad in law. However, in this case, the facts and circumstances disclose that all the grounds are vague and they are merely allegations, bereft of any material and support thereof and, therefore, Section 10-A of the Act of 1978 need not be considered in the facts and circumstances of the present case.
22. As regards the argument put forth by the learned Counsel for the Respondents that the grounds of detention specifically establish the association of the Appellant with a proscribed Organization as an Over Ground Worker (OGW) is concerned, we reject the same on factual aspects.
LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 9 of 11 An allegation without any material in support thereof is merely an opinion and not a satisfaction. An opinion can be arrived at without any supporting material. However, satisfaction has to go through the process of appreciation of material to arrive at a specific finding.
23. As regards the argument of the learned Counsel for the Union Territory that the order of detention has been passed in the larger interest of the society is concerned, this Court holds that an order of detention is required to be passed in the larger interest of the society, however, it must also take into consideration that the individual is a mandatory component of the society and the society cannot exist without the individual. Though, the larger interest of the society has to be taken into consideration, the same has to be balanced with the personal liberty of the individual. In other words, the personal liberty of the individual cannot be put to sword on the basis of presumptions and assumptions with regard to the danger posed by the individual, but must be based on such material which prima facie gives rise to a finding of fact that the Appellant/ detenue may, in all probability than not, be involved in anti-state actions, as is disclosed in the grounds of detention. The powers under the Act of 1978 do not give a carte blanche to the State to impinge on personal liberty without substantial grounds. However, as stated earlier hereinabove, those substantial grounds may be established by prima facie material and not rely upon or consider material which would go to show the involvement of the detenue beyond reasonable doubt, as the standards of a criminal trial are not required to be applied by the detaining authority, while passing an order of detention.
24. This Court is aware of the law on the subject and that the Courts are not to sit as an appellate authority over the subjective satisfaction of the detaining authority, however, the same does not mean that the constitutional Courts have no authority to set aside the order of detention, even though it is satisfied that the operation of the said order directly impinges upon the right of the detenue under Article 21 itself. In this regard, the Judgment of the Supreme Court placed before this Court by the learned Counsel for the Appellant reported in "2009 (5) SCC 296 (Pooja LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 10 of 11 Batra v. Union of India & Ors.)", with specific reference to Paragraph No.30, appears to be relevant to this case, where the Supreme Court has held as settled law that the power of judicial review for the constitutional Courts does not go to the extent of siting as an appellate Court on the order of detention re-appreciating the material considered by the detaining authority. However, as an order of detention involves the fundamental right of citizens and their freedom of movement, the Supreme Court held that a total hands-off approach by the constitutional Courts cannot be claimed by the authorities, when their decision to detain a citizen, on judicial scrutiny, is found to be unjustified and that the Courts are entitled to examine whether there has been due and proper application of mind and that all relevant and vital materials have been noticed, adverted and considered by the detaining authority.
25. Under the circumstances, in view of what has been argued, considered and held by this Court hereinabove, the instant appeal succeeds. The impugned Order and Judgment of the Writ Court is set aside. Consequently, the impugned order of detention of the Appellant is also quashed and set aside. The Appellant is set forth at liberty, if not required in any other case pending against him as on the date of this Judgment. The authority shall comply without delay in the name of "verification". Any delay in the release of the detenue after service of this order on the authority will constitute illegal detention and contempt of this Court order for which the reprisal shall be sharp, swift and severe on those whom it shall befall.
26. Before parting with this case, we wish to make an observation with regard to the averment made in the grounds of detention on supply of documents to the detenue, as we have seen several cases in which the total number of leaves have been given to the detenue. There is a fundamental problem that arises in the manner in which the documents are given to the detenue. In the absence of any indexing or the description of the documents so given to the detenue, there is always a conflict on a question of fact whether a particular document was ever given to the detenue or not. Therefore, this Court considers it necessary to direct that in all future cases LPA No. 149/2024 in WP (Crl) No. 186/2023 CM No. 3444/2024 Page 11 of 11 of detention, the execution order shall give an index with specific description of each and every document and the page numbers attributed to them in the execution order. Failure to do so and any dispute regarding the non-supply of document raised by the detenue, which does not find a mention in such an index, or in the absence of such an index, the Court shall be at liberty to hold in favour of the detenue. This Judgment shall be forwarded to the Commissioner/ Secretary to Government of Union Territory of Jammu & Kashmir, Home Department as also to all the Deputy Commissioners of the Union Territory of Jammu & Kashmir for information and compliance.
27. Letters Patent Appeal shall stand disposed of in the above terms, along with the connected CM.
(Puneet Gupta) (Atul Sreedharan)
Judge Judge
SRINAGAR
November 7th, 2024
"TAHIR"
i. Whether the Judgment is approved for reporting? Yes/No.
MIR ARIF MANZOOR
I attest to the accuracy and
authenticity of this
document