Jammu & Kashmir High Court - Srinagar Bench
Jahangir Ahmad Bhat vs Government Of J&K And Another on 16 September, 2022
Bench: Chief Justice, Puneet Gupta
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
Reserved on: 12.09.2022
Pronounced on: 16.09.2022
LPA No.80/2022
Jahangir Ahmad Bhat ... Appellants.
Through: Mr. M. Ashraf Wani, Advocate.
Vs.
Government of J&K and another. ....Respondent(s)
Through: Mr. Sajjad Ashraf, GA.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
J U D G M E N T
Pankaj Mithal, CJ,
1. The petitioner-appellant Jahangir Ahmad Bhat is in preventive detention. His writ petition challenging his detention has been dismissed by the learned Single Judge vide judgment and order dated 25.04.2022, hence he has preferred this appeal.
2. The petitioner is a resident of District Kupwara. He obtained education upto Middle Class and thereafter worked as a Bus Conductor and finally became a Bus Driver.
3. The petitioner-appellant and his associate Javed Ahmad Lone were apprehended on 05.04.2015 in suspicious circumstances and during search 01 Kg and 100 Gms of Charas was recovered from their possession. Accordingly, FIR No.16/2015 under Sections 8/20 and 29 of the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, hereinafter for short the Act, was registered in Police Station Kralpora. In ____________________________________________________________________________ LPA No.80/2022 1|Page pursuance thereof investigations were conducted and finally the petitioner- appellant was charge sheeted on 19.06.2011 before the court of Principal Sessions Judge, Kupwara. He was granted bail by the trial court on 30.01.2016.
4. It appears that in the aforesaid background a detention order was passed against him on 13.09.2021 by the Divisional Commissioner. The order states that he is satisfied by the record submitted by the Sr. Superintendent of Police, Kupwara, that in order to prevent the petitioner- appellant from committing illegal activities within the purview of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, it is necessary to detain him under Section 3 of the Act. The petitioner- appellant was served with the detention order and the grounds of detention along with other relevant documents to enable him to file representation to the appropriate authorities.
5. The grounds of detention refers to the aforesaid incident on 05.04.2015 when the appellant-petitioner was found in possession of 01 Kg and 100 Gms of Charas. It states that he is working in an organized and well planned manner and committing drug trafficking causing damage to the society. Therefore, it has become necessary to put him in preventive detention. The petitioner-appellant challenged the above detention order by filing WP(Crl) No.175/2021 which has been dismissed vide the impugned judgment and order dated 25.04.2022.
6. In the writ petition the petitioner-appellant has raised various grounds such as that the detention order was not passed with independent mind or recording proper satisfaction; that he was not supplied with the ____________________________________________________________________________ LPA No.80/2022 2|Page material relied upon for his detention; and that he was denied proper opportunity to file an effective representation. The learned Single Judge repelled all the contentions as raised by the petitioner-appellant and dismissed the writ petition.
7. On behalf of the petitioner-appellant, Mr. M. Ashraf Wani, learned counsel, has raised two arguments before us. The first is that on the solitary incident of 2015 wherein the petitioner-appellant was released on bail on 30.06.2016, the order of preventive detention has been passed with no averment that he was involved in similar kind of activities thereafter till the date of detention; and secondly that the detention order stands vitiated for want of non-consideration of his representation.
8. We first take up the second point raised by Mr. M. Ashraf Wani, with regard to non-consideration of the representation of the petitioner- appellant.
9. Mr. Sajjad Ashraf, learned GA, on the above aspect submits that the petitioner-appellant has not pleaded in the writ petition that he had made any representation to the authorities or that it has not been considered. It is for this reason that the decision of the writ court is silent in this regard.
10. Our attention was drawn by the Government Advocate to the pleadings contained in the writ petition and we are satisfied that the petitioner-appellant has not very specifically pleaded that he had submitted any representation to the Government and the same has not been considered. The petitioner-appellant in paragraph-9 of the writ petition, simply states that "as against the order of detention, a representation has ____________________________________________________________________________ LPA No.80/2022 3|Page been submitted to the Government" but the petitioner-appellant has failed to refer to any date and the manner in which such a representation was filed by him. Further, in the grounds, he has stated that he has been deprived of the opportunity to make effective and purposeful representation against the order of detention. He further states that the respondents have omitted to name the authority before whom the representation was to be filed. The averments so made by the petitioner- appellant in the writ petition reveals that he is trying to blow hot and cold in the same breath. At one stage, he states that he has been denied to make effective representation against the detention and that the Government has failed to specify the authority before whom the representation is to be filed yet on the other hand he submits that he had submitted a representation to the Government but without disclosing as to when and in what manner such a representation was made. At the same time, the petitioner-appellant has failed to bring on record a copy of the said representation.
11. In the end our attention was drawn to Annexure-III to the writ petition. The said annexure is in the nature of a representation which probably has been sent by the petitioner-appellant to the Principal Secretary to the Government by registered post on 27.10.2021 but in the absence of the pleadings in regard to the aforesaid document and any material to indicate that it was actually received by the competent authority within time, we are of the opinion that the aforesaid representation if at all is meaningless and is of no consequence. It may be noted that no one is allowed to lead evidence beyond the pleadings and, therefore, also the above document has no relevance for our purpose.
____________________________________________________________________________ LPA No.80/2022 4|Page
12. In view of the aforesaid facts, we do not find any substance in the above argument of the learned counsel for the petitioner.
13. Now coming to the second aspect of the matter, we find that entire allegation on which the petitioner-appellant had been put in preventive detention is his involvement in a criminal case registered against him in pursuance of the FIR No.16 of 2015 under Section 8/20 & 29 of the Act concerning an incident dated 05.04.2015 wherein 01 Kg and 100 Gms of Charas was alleged to have been recovered from his possession. The petitioner-appellant was bailed out in the said case which is pending before the Principal Sessions Judge, Kupwara, on 30.01.2016. There is no averment or any material either to establish or to even remotely suggest that the petitioner-appellant after being enlarged on bail on 30.01.2016 in the aforesaid case was involved in any other similar kind of activity.
14. We have perused the original records of detention as produced by the learned Government Advocate. It also reveals that apart from the above case, there is no case ever registered against the petitioner-appellant or is said to be pending. It only reveals that the Sr. Superintendent of Police, Kupwara, is of the opinion that the petitioner-appellant is working in an organized and well planned manner and his activities are detrimental to the social and economic values. He has made drug peddling his profession.
15. The Sr. Superintendent of Police in forming the above opinion has not referred to any material or incident which may indicate that the petitioner-appellant is actually involved in drug peddling or is in any way supporting the drug peddlers.
____________________________________________________________________________ LPA No.80/2022 5|Page
16. The detention order also refers to the communication of the Sr. Superintendent of Police, Anantnag and the connected documents as also the record submitted by the Sr. Superintendent of Police, Kupwara, which are again in connection with the above case. It is on perusal of the same that the Divisional Commissioner recorded his satisfaction that it is necessary to put the petitioner-appellant in preventive detention. The detention order clearly reveals that only on account of the above solitary incident and pendency of the criminal case that the petitioner-appellant has been placed in preventive detention forming an opinion that he is operating in an organized and well planned manner in drug trafficking which is a serious crime against the society.
17. It is well settled that preventive detention is not punitive in nature and is resorted to in order to prevent future commission of similar offences by the person concerned. The very fact that the petitioner-appellant was not involved in any similar kind of activity ever since his release from jail on being granted bail on 30.01.2016 till passing of the impugned detention order clearly establishes that he is not a habitual offender involved in such an activity to arrive at a conclusion that he is likely to repeat the offence again.
18. The Supreme Court in Rajinder Arora v. Union of India & Others : (2006) 4 SCC 796 has held that in passing a detention order after ten months of alleged illegal act without any explanation for delay in passing the same cannot be sustained in law. In other words a solitary criminal act which may have taken place long back cannot be a valid ground for ____________________________________________________________________________ LPA No.80/2022 6|Page detention unless there is any material to substantiate that the person is regularly involved in similar kind of nefarious activities.
19. The Allahabad High Court referred an issue as to whether a single incident can be the basis for passing the detention order under the National Security Act, 1980, to a larger Bench. The Full Court vide its judgment and order reported in the case of Suresh Pandey v. State of U.P. and others : 2005 CriLJ 1383 answered the above question and held that the detention order can be passed on a single/ solitary incident if it is an organized crime and having a serious effect on public life. The Full Court relied upon the decision of the Supreme Court in Ali Jan Mian v. District Magistrate, Dhanhad : AIR 1983 SC 1130, wherein it was held that even a solitary incident if it has prejudicially affected the public order it may be sufficient to detain a person preventively.
20. In Debu Mahato v. The State of West Bengal : AIR 1974 SC 816, the Supreme Court held as under:
".....................The order of detention is essentially a precautionary mesure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct Judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or a series of acts. But, whatever it be, it must be of such a nature that an inference can be reasonably be drawn from it that a person concerned would be likely to repeate such acts so as to warrant his detention............"
21. In view of the above though past conduct of a person is relevant for determining his future course of action but such a past conduct must be in close proximity in time and not too remote.
____________________________________________________________________________ LPA No.80/2022 7|Page
22. In Golam Hussain v. The Commissioner of Police Calcutta and others : AIR 1974 SC 1336, it was observed that no authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. Therefore, the length of the gap from the past act and the recording of the satisfaction that he is likely to repeat the same is very material and relevant and if the chain is snapped and there is a long interval which is unexplained, the order of detention may not be proper.
23. A similar issue of the past act and its proximity with the detention order came to be considered by a Full Bench of the Allahabad High Court in the case of Pradeep Kumar Gupta v. State of Uttar Pradesh and others : 1993 CriLJ 1671, it was observed that unexplained delay between the occurrence of the past and the order of detention is fatal to the order of preventive detention. The court in reference pointed out that the past incidents have taken place in 1971 whereas the detention order was passed on 27.02.1973 and the said delay was found to be fatal.
24. In another Full Bench Judgment of the Allahabad High Court in Munni Lal v. Superintendent of Central Jail Naini and others :
MANU/UP/0426/1985, the moot question was the effect of the past incident and the order of detention passed by the detaining authority. The court observed that whether the acts of the detenu forming the basis in arriving at a subjective satisfaction, are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must be taken on the facts and circumstances of each case. The test of proximity is not a rigid or a mechanical test to be blindly applied by merely counting ____________________________________________________________________________ LPA No.80/2022 8|Page the number of months between the offending acts and the order of detention. In such cases what has to be seen is whether the past activities of the detenu are such that from it a reasonable prognosis can be made as to the future conduct of the detenu. In case the time lag between the offending act and the date of order of the detention is long and the link between the two breaks down, the satisfaction recorded by the District Magistrate for preventive detention would be sham or unreal.
25. The Full Court in dealing with the question as to when the grounds relied upon by the detaining authority can be said to have become stale, noted that merely because detenu had done something evil long ago does not mean that he is likely to commit the same mischief in future. The Court in this connection relied upon Sahib Singh Dugal v. The Union of India :
AIR 1966 SC 340,wherein it was held that where the detention order is passed on the basis of the past activities of the person concerned, the said past activities should ordinarily be proximate in point of time in order to justify the order of detention and there must be a link between the two.
26. A Division Bench of the Allahabad High Court in Abhayraj Gupta v. Superintendent, Central Jail, Bareilly : 2021 SCC OnLine ALL 900 had an occasion to examine if the incident which took place on 02.12.2019 is a stale incident which is not proximate to the time when the detention order was passed on 23.01.2021 and whether there was no link between the alleged prejudicial activity. The court relying upon the various precedents held that when there is undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinize whether the detaining authority has satisfactorily explained such ____________________________________________________________________________ LPA No.80/2022 9|Page a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned. It was observed that there has to be some proximity in time to provide a rational nexus between the incidents relied on and the time of recording of the satisfaction. Thus, in the relevant case where the incident took place on 02.12.2019 prior to 14 months of the passing of the detention order, it was held that it was certainly a stale incident which was not proximate to the time when the detention order dated 23.01.2021 was passed and as such is bad in law.
27. Recently Hon'ble Justice Dr. D. Y. Chandrachud speaking for a Division Bench in Khaja Bilal Ahmed v. State of Telangana and others :
(2020) 13 SCC 632 relying upon Golam Hussain (supra) wherein it was observed as under:
"Suffice it to say that in any case, incidents which are said to have taken place nine to fourteen years earlier, cannot form the basis for being satisfied in the present that the detenu is going to engage in, or make preparation for engaging in such activities."
held that "It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future."
The aforesaid decision applies with full vigour in the instant case.
28. It is true that the satisfaction recorded by the authorities/ Government in placing a person in preventive detention is not ordinarily open to challenge but where the satisfaction on the face of it lacks material ____________________________________________________________________________ LPA No.80/2022 10 | P a g e support and there is no basis for making an averment that the person concerned is indulging in the same kind of activities, the power of judicial review is always available and cannot be snatched away.
29. The finding of the learned Single Judge that the record tends to show that the petitioner-appellant is a habitual offender and seemingly is a part of an organized and well planned drug mafia is perverse and does not lend support from any material.
30. In view of the aforesaid facts and circumstances, the impugned judgment and the order dated 25.04.2022 passed by the writ court is hereby set-aside and the detention order No.DIVCOM-"K"/167/2021 dated 13.09.2021 is quashed and the petitioner-appellant is set at liberty until and unless he is wanted in any other case.
31. The appeal is accordingly allowed in the aforesaid terms. The record produced by the leared Government Advocate be returned to him.
(PUNEET GUPTA) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
16.09.2022
Abdul Qayoom, Secy.
Whether the judgment is reportable? Yes.
____________________________________________________________________________ LPA No.80/2022 11 | P a g e