Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Bhat vs Union Territory Of J&K & Anr on 24 July, 2023
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 440/2022
Reserved on: 12.07..2023
Pronounced on : 24.07.2023
Mushtaq Ahmad Bhat
...Petitioner(s)
Through: Mr. Shafqat Nazir, Advocate.
Vs.
Union Territory of J&K & Anr.
...Respondent(s)
Through: Mr. Jehangir Ahmad Dar, GA.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. District Magistrate Baramulla- respondent No.2 (for short 'detaining authority') in exercise of powers conferred on him under Section 8(a) of the J&K Public Safety Act, 1978, passed the detention order No. 86/DMB/PSA/2020 dated 27.02.2020 (for short 'impugned order'), in terms whereof the petitioner Mushtaq Ahmad Bhat S/O Sana-u-IIah Bhat R/O Naikpora Seeloo Sopore Baramulla( for short 'detenue') was detained with a view to prevent him from acting in any manner prejudicial to the maintenance of security of the State. The said detention order has been challenged through the medium of instant petition, allegedly being in breach of the provisions of Article 22(5) of the Constitution of India.
2. It is being pleaded in the petition that the detenue was arrested by the police without any justification and was placed in illegal confinement. It is being contended that the allegations/grounds of Page |2 detention are vague and mere assertions of the detaining authority and no prudent man can make an effective representation against these allegations. Furthermore, it is stated that the allegations whose mention is made in the grounds of detention have no nexus with the detenue and have been fabricated by the police in order to justify its illegal action of detaining the detenue. In addition, it is stated that the detaining authority has not prepared the grounds of detention by itself, whileas, same is replica of the police dossier. Also it is being pleaded that the detaining authority has not furnished the material and other connected documents, relied upon, to the detenue to enable him to make an effective representation; that the detenue has also not been informed that within what time-frame he can make representation against his detention, which clearly shows violation of the right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India.
3. Respondents in their counter affidavit/reply have stated that the grounds of detention are precise, proximate, pertinent and relevant. There is no vagueness or staleness in the grounds coupled with definite indications as to the impact thereof, which has been precisely stated in the grounds of detention. Further it is contended that the grounds of detention give complete account of the activities of the detenue which on the face of it are highly prejudicial for maintenance of security of the State, as such, there was no option left but to order detention of the detenue under Public Safety Act.
4. The main plea of learned counsel for the detenue is that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such Page |3 allegations and passing of detention on such grounds is unjustified and unreasonable. Further contention of learned counsel for the petitioner is that the order of detention came to be passed on 27.02.2020 against the detenue, however, the same was executed on 24.03.2022. There was inordinate and unexplained delay of more than two years in executing the order of detention. As such there is not only no proximity between the alleged illegal activities of the detenue and order of detention but the impugned order has also lost its purpose and usefulness. Therefore, has prayed for quashment of the impugned order.
5. In rebuttal, learned GA submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority against his detention.
6. Heard, perused the detention record and considered.
7. On perusal of the grounds of detention, it transpires that the detenue has studied upto 10th class and could not continue his studies due to some domestic problems. It also transpires that way back in the year 1990, the detenue ex-filtrated to POK/PAK for obtaining illegal arms and ammunition training and returned back in the year 1991 and remained affiliated with JKLF militant outfit. The detenue remained active for a period of one year and thereafter surrendered before the Army along-with arms and ammunition. After his surrender, the detenue started running a 'kiryana shop' in his locality Page |4 and is still connected with the said business. It further reveals that the detenue in the month of January 2019, developed contacts with LeT commander namely Sajad Ahmad Mir @ Haider (nephew of the detenue) who motivated him to work with LeT outfit. The detenue got motivated and started working as OGW with the said banned outfit. It is alleged in the grounds of detention that the detenue has made an underground hideout in his land in the outskirts of Seeloo for the use of militants, which, however, was busted by the police and security forces on the disclosure of LeT militant Danish Ahmad Channa of Baramulla. In this regard FIR No.272/2019 was registered at Police Station Sopore.
8. The detenue has been shown as a security risk mainly on the ground that he was involved in antinational acts, however, just one FIR, that too in the year 2019, had been registered against the detenue. No other specific allegations against the detenue have been unfolded as to where he committed the acts so as to help the terrorist activities.
9. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue. If the detenue is not supplied the material on which detention order is based, the detenue cannot be in a position to make an effective and meaningful representation against his detention.
10. It is also a fact that time frame within which representation was required to be filed has not been conveyed to the detenue. This too has to be treated a breach of right of the detenue under Section 13 of Public Safety Act and Article 22 of the Constitution of India.
Page |5 Allahabad High Court has rendered the judgment in the case 'Jitendra Vs. District Magistrate (2004 CriLJ 2967) in this regard and has observed that:
"...There is another reason as to why in our judgment the impugned detention order would be vitiated. Since the detenue's right to make a representation to the detaining authority was only available to him till the approval of the detention order by the Government, it follows as logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to him i.e. till the approval of the detention order by the State Government."
11. Preventive detention being a drastic State action based only upon suspicion arising from a person's past activity, can be allowed, as the settled legal position mandates, only if there is a live and proximate link between a person's past activities and the need for passing of a preventive detention order. A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity. Delay in passing and execution of a preventive detention order not only defeats the very purpose of such order, but more importantly, creates a doubt as to the necessity of adopting such a harsh measure against an individual, whereby the individual's liberty is curtailed on suspicion alone.
12. In P.U Iqbal Vs. Union of India & Ors. reported as (1992) 1 SCC 434, the, the Hon'ble Supreme Court has held as under:-
"14. Now, there can be no doubt-and the law on this point must be regarded as well settled by these two decisions-that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenue, such delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate Page |6 and it would be a legitimate inference to draw that the District Magistrate was not really and genuinely satisfied as regards the necessity for detaining the petitioner.
15. Chinnappa Reddy, J. speaking for the Bench in Bhawarlal Ganeshmalji v. State of Tamil Nadu has explained as follow:
It is further true that there must be a 'live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case, we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened.
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18. It is manifestly clear from a conspectus of the above decisions of this Court, that the law promulgated on this aspect is that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenue, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the 'live and proximate link' between the grounds of the detention and the purpose of detention is snapped in arresting the detenue. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case."
13. On the touchstone of the law laid down above and the rival submissions, the order of detention, impugned in the instant petition, does not sustain on the aforesaid grounds.
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14. In the afore-stated backdrop, this petition is allowed. Impugned Order of detention No. 86/DMB/PSA/2020 dated 27.02.2020 passed by District Magistrate Baramulla is, as such, quashed. The detenue namely Mushtaq Ahmad Bhat S/O Sana-u-IIah Bhat R/O Naikpora Seeloo Sopore District Baramulla, is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).
15. Detention record as has been produced be returned back to learned GA.
16. Disposed of, as such.
( M. A. CHOWDHARY ) JUDGE Srinagar 24.07.2023 Muzammil. Q Whether the order is reportable: Yes / No