Jammu & Kashmir High Court - Srinagar Bench
Asif Ahmad Lone vs Union Territory Of J&K & Anr on 10 August, 2023
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 527/2022
Reserved on: 26.07.2023
Pronounced on: 10.08.2023
Asif Ahmad Lone
...Petitioner(s)
Through: Mr. Wajid Haseeb, Advocate.
Vs.
Union Territory of J&K & Anr.
...Respondent(s)
Through: Mr. Ilyas Laway, GA.
CORAM:HON'BLE MR. JUSTICE M. A.CHOWDHARY, JUDGE
JUDGMENT
1. Impugned is the order of detention bearing No. 25/DMB/PSA of 2022 dated 25.06.2022 passed by respondent No.2- District Magistrate Bandipora, whereby the detenue has been taken into preventive detention under Clause (a) of Section 8 of J&K Public Safety Act 1978, in order to prevent him from acting in any manner prejudicial to the security of the State.
2. The order of detention is challenged by the detenue through the medium of this petition on the following grounds:-
i. That the allegations mentioned 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. ii. That the allegations in the grounds of detention are just a script without any material basis and there is nothing alleged in the grounds of Page |2 detention, which would amount to activity prejudicial to the security of the State. iii. That, the allegations made 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 unjustified and unreasonable. iv. That, the detenue was already bailed out in FIR No. 27/2016 and FIR No. 32/2020, however, this important fact has not been reflected in the grounds of detention.
v. That, the last alleged activity attributed to the detenue as per the grounds of detention has taken place on 25.08.2020 and thereafter no fresh activity has been attributed to the detenue. vi. That the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite before passing any detention order. The detaining authority has relied only on the police dossier.
vii. That, the detenue has not been provided the relevant material like copy of dossier and other connected material, statement under Section 161 CrPC, seizure memo, recovery memo etc., to enable him to make an effective representation by giving his version of facts attributed to him.
Page |3 viii. That, post detention, the detenue submitted a representation before respondent No.2, however, same was not considered and neither the material was furnished as requested in the representation so that an effective representation could be made before the Government as well as to Advisory Board.
3. Learned counsel for the detenue argued that the impugned order of detention or the grounds of detention formulated by the detaining authority do not indicate any compelling reason necessitating preventive detention of the detenue, thus, submitted that preventive detention of the detenue is illegal.
4. Learned counsel for the detenue in addition to the grounds of detention of which reference is found in the petition has also made mention as to how counter affidavit filed by respondent No.2 is suggestive of the fact that the order impugned is bad. He has referred to Para-C of the said reply affidavit, wherein it is mentioned that the basis of detention is the satisfaction of the Executive of a reasonable probability of likelihood of detenue acting in a manner similar to his past acts and preventing him by detention from doing the same. Later it was stated in the reply affidavit that the order of detention has been passed by the detaining authority as a precautionary measure based on a reasonable prognosis of the future behavior of the detenue based on his past conduct in the light of surrounding circumstances generating a strong apprehension of likelihood that the detenue would in view of his past activities indulge again in activities prejudicial to the security of the State. It is also submission of learned counsel for the petitioner that the material Page |4 (dossier) was not furnished to the detenue rendering the order impugned non-est.
5. One more plea taken by learned counsel for the petitioner is about the vagueness in the grounds of detention. It is being stated that the detenue is instigating the youth and organizing violent mobs in order to disturb and destabilize the peaceful atmosphere in Bandipora Town and its adjacent areas, is not being explained, thereby incapacitating the detenue to make an effective representation in terms of Article 22(5) of the Constitution of India.
6. Another plea raised by learned counsel for the petitioner is that the mention of FIRs in the grounds of detention is regarding some civil disputes and there is mention of ten such FIRs in the grounds of detention, which cannot be made base for passing detention order under the Public Safety Act. He submitted that the impugned order is, therefore, unfounded and vitiated.
7. On the other hand, Mr. Laway learned GA, submitted that the District Magistrate was right in ordering the detention of the detenue as his activities were prejudicial to the security of the State; that the grounds of detention are precise, proximate, pertinent and relevant, there being 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; 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.
8. Heard, perused the record and considered.
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9. The grounds of detention formulated by the detaining authority inter alia would show that the detenue was having a criminal bent of mind which is quite evident from his past as well as present conduct over a period of time and his activities have potentially disturbed the peaceful atmosphere in Bandipora area. He has spoiled the youth of the area by instigating them and organizing violent mobs in order to disturb and destabilize the peaceful atmosphere in Bandipora Town and its adjacent areas. The detaining authority was, thus, of the opinion that it has become imperative to detain the detenue in preventive detention with a view to prevent him from indulging in any manner prejudicial to the security of the State.
10.The detenue was already admitted to bail in cases registered vide FIR Nos. 27/2016 and 32/2020, however, there is no mention of this important fact in the grounds of detention, which clearly shows that the detention order, passed by the detaining authority, suffers from non- application of mind. There is nothing in the detention order to infer that the bail can be granted in favour of the detenue in view of the involvement in the case of this nature. Normal law could properly deal with the matter in hand. Bail even if granted in favour of the detenue by the regular criminal court, could be challenged before appropriate forum.
11. It is true that the allegations leveled against the detenue that he was involved in exploiting the young generation by instigating them and organizing violent mobs in order to disturb and destabilize the peaceful atmosphere in Bandipora Town and its adjacent areas, is all vague and in such situation the petitioner herein would not be in a position to submit a meaningful representation before the detaining authority or the Page |6 competent authority to have a fresh look into the matter. Vagueness does invalidate the detention order in the circumstance. In this regard reliance can be taken on the judgment passed by the Hon'ble Apex Court in case Chaju Ram Vs. State of J&K, AIR 1971 SC 263, wherein their lordships have observed and enunciated that:-
"Even as to the grounds, we have something to say. The grounds charge him with having conspired with some leaders of Democratic Conference and having incited landless people of R.S Pura Tehsil to forcibly occupy the land comprised in Nandpur Mechanised Farm and to have persuaded them to resist violently any attempt to evict them. No details of the leaders of the Conference or of the persons incited or the dates on which he conspired or incited the squatters or the time when such conference took place, are mentioned. It would be impossible for anybody to make a representation against such grounds. These grounds, on the authorities of this Court, too numerous to be cited here, must be held to be vague. Therefore on both the twin grounds, namely, that he was deprived of his right to make a representation and also because the grounds in themselves were very vague, we must hold that there was no compliance with the law as laid down in the Jammu and Kashmir Preventive Detention Act. The result, therefore, is that the detention must be declared to be unlawful and Chaju must be declared to be entitled to his liberty. He is ordered to be released. The detenu was questioned by us and he expressed a desire that he may not be released in Delhi, because he has no means of going back. He asked to be released in Jammu. We direct therefore that he shall be taken back to the place where he was in detention in Jammu and released within the shortest possible time."
12. Further contention of learned counsel for the petitioner is that there are no specific allegations against the detenue. This too is a stale ground to Page |7 base the detention in the month of June 2022, of an incident in the year 2020, after a period of more than two years. The afore-stated grounds of detention, as such, are general allegations against the detenue, with no specific instances/incidents. The detention order based on such vague and stale grounds is not sustainable, for the reason that the detaining authority before passing the order has not applied its mind to draw subjective satisfaction to order detention of the detenue by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India. In this regard reliance can be placed on the judgments of Supreme Court in the cases
(i) Jahangirkhan Fazal Khan Pathan Vs. Police Commissioner Ahmadabad (1989) 3 SCC 590 and, (ii) Abdul Razak Nanekhan Pathan Vs. Police Commissioner Ahmadabad AIR 1989 SC 2265.
13. It has been contended on behalf of the detenue that he had filed a representation against his detention, however, respondents ignored to consider his representation. Respondents in their reply have maintained silence with regard to this assertion of the petitioner. Petitioner has claimed to have filed representation which was forwarded to the Detaining authority under registered postal service on 19.07.2022, as per postal receipt on file. Therefore, representation filed on behalf of the detenue was not considered which also vitiates the detention order. In this regard, I am fortified with the judgment rendered in "Dr. Rahmatullah vs State of Bihar reported as AIR 1981 SC 2069". Para-4 of the said judgment would be advantageous to be quoted hereunder:-
"4.The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions Page |8 of Article 22(5) must be complied with. Sub- Article (5) of Article 22 reads:
'When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.' This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenue is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution.
The non-consideration or an unreasonably belated consideration of the representation tantamount to non- compliance of Sub-Article (5) of Article 22 of the Constitution."
14. Having regard to the afore-stated legal position and in view of the submissions, this petition is allowed. The impugned detention order bearing No. 25/DMB/PSA of 2022 dated 25.06.2022, is quashed. The detenue namely Asif Ahmad Lone S/O Wali Mohammad Lone R/O Kumar Mohalla Gundpora Rampora Bandipora, is directed to be released forthwith from his preventive custody, if not required in any other case(s).
15. Detention record be returned back to the learned GA.
( M. A. CHOWDHARY ) JUDGE Srinagar 10.08.2023 Muzammil. Q Whether the order is reportable: Yes / No