Jammu & Kashmir High Court - Srinagar Bench
Muzaffar Ahmad Rather vs Ut Of J&K & Ors on 10 August, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 21.07.2023
Pronounced on:10.08.2023
WP(Crl.) No.146/2022
MUZAFFAR AHMAD RATHER ...Petitioner(s)
Through: - Mr. R. A. Bhat, Advocate.
Vs.
UT OF J&K & ORS. ...Respondent(s)
Through: - Mr. Mubashir Majid Malik, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By the medium of instant petition, the petitioner has challenged the legality and veracity of the order No.15/DMK/PSA/2022 dated 08.04.2022, issued by District Magistrate, Kulgam - respondent No.2 herein, in terms whereof, Muzaffar Ahmad Rather S/o Abdul Rashid Rather R/o Munand Yaripora District Kulgam (hereinafter referred to as the detenue), has been ordered to be taken into preventive custody and lodged in Central Jail, Jammu (Kotbalwal), for preventing him from acting in any manner prejudicial to security, sovereignty and integrity of the State.
2) The petitioner has contended that the detaining authority has passed the impugned detention order mechanically without application of mind as the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by 2 WP(Crl.) No.146/2022 the police in order to justify its illegal action of detaining the detenue. It has been contended that the grounds of detention are vague on the basis of which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner. That the grounds of detention are non-existent and stale and that the representation filed by the detenue has not been considered by the respondents.
3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It is contended that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. That the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have placed reliance on various judgments of the Supreme 3 WP(Crl.) No.146/2022 Court. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.
4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main, thrust during the course of arguments, was on the following grounds:
(I) That the detenue was not furnished the whole of the material to enable him to make an effective representation against his detention.
(II) That although a representation was submitted against the detention by the detenue through his father before the respondents yet the same has not been considered thereby rendering the detention order unsustainable in law.
(III) That the impugned order of detention is based upon stale incident having no proximate link to the activities alleged to be prejudicial to the maintenance of public order.
5) So far as the first ground of challenge is concerned, a perusal of the material on record reveals that the petitioner has received detention warrant (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other related relevant documents (Nil) (total 04 leaves), and in token whereof, his signatures have been obtained on the document under the style 'Execution Report', which forms part of detention record. If we have a look at the grounds of detention, it bears reference to FIR No.20/2019 of P/S Yaripora. It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner's involvement in the 4 WP(Crl.) No.146/2022 said FIR is shown. Even the copy of the dossier of detention has not been supplied to the petitioner.
6) Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded.
Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.
7) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right 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. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184).
5 WP(Crl.) No.146/2022
8) The next ground projected by the petitioner is that he had submitted a representation against his detention but the same has not been considered by the respondents.
9) It has been specifically contended by the petitioner that he had made a representation against his detention through his father, which, seemingly, has been addressed to the office of District Magistrate, Kulgam, on 26.04.2022. The petitioner has specifically pleaded in ground (K) of his petition that he made a representation before the detaining authority but the same has not been placed before the Advisory. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. The detention record suggests that the said representation has been received by the respondents but the same has not been placed before the Advisory Board. The failure of the respondents to place the representation submitted by the detenue before the Advisory Board and its consequent non-consideration indisputably amounts to violation of constitutional safeguards provided the provisions of Article 22(5) of the Constitution. A reference in this behalf to the judgment of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, would be relevant. In Para 4 of the aforesaid judgment, the Court observed as under:-
"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 6 WP(Crl.) No.146/2022 detention laws as may often be necessary to prevent further commission of such offences, then the provisions 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 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 detenu 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."
10) From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law.
11) Next it has been contended by learned counsel for the petitioner that the impugned order of detention has been passed on the basis of stale incident having no proximate link with the activities alleged to be prejudicial to the security of the State.
7 WP(Crl.) No.146/2022
12) A perusal of the grounds of detention reveals that the incident referred therein pertain to the year 2019, that is more than three years prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus, it is clear that the order of detention has been based on past and stale incidents.
13) The Supreme Court in the case of Sama Aruna v. State of Telengana and & anr, (2018) 12 SCC 150, while holding that the incidents which are said to have taken place long back, cannot form basis for being satisfied that the detenue is going to engage in similar activities, observed as under:
"17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it."
From the aforesaid enunciation of the law on the subject, it is clear that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the maintenance of security of the state. In the instant case, the said link is completely missing as the time between the order of detention and the 8 WP(Crl.) No.146/2022 incident referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained.
14) For the afore-stated reasons, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, provided he is not required in connection with any other case.
15) The record be returned to learned counsel for the respondents.
(Sanjay Dhar) Judge Srinagar 10.08.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No