Jammu & Kashmir High Court
Unknown vs (I) Ut Of J&K on 19 December, 2024
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 67/2024
Reserved on: 05.12.2024
Pronounced on: 19.12.2024
(i) Abdul Karim Butt, Aged 50, .... Petitioner/Appellant(s)
S/o Late Mohd. Anwar Butt,
R/o Bhadat Saroor
A/p Tangwari, Tehsil Drabshalla,
District Kishtwar
Through his son
Firdous Ahmed, Aged 19,
S/o Abdul Karim Butt
R/o Bhadat Saroor
A/p Tangwari, Tehsil Drabshalla,
District Kishtwar
Through:- Mr. Kabir Kotwal, Advocate.
V/s
(i) UT of J&K, .....Respondent(s)
Through Financial Commissioner
(Additional Chief Secretary)
Home Department,
Civil Secretariat, Jammu
(ii) The District Magistrate,
Kishtwar
(iii)The Superintendent of Police,
Kishtwar
(iv) The Superintendent,
Sub-District Jail,
Yamuna Nagar, Haryana
Through:- Mr. Bhanu Jasrotia.G.A.
CORAM: HON‟BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The petitioner has challenged the legality, propriety and correctness of
impugned detention order No. 5th/DM/K/PSA of 2023 dated 01.08.2023,
passed by the District Magistrate, Kishtwar under Section 8(2) of the Jammu
HCP No. 67/2024 Page 2 of 7
and Kashmir Public Safety Act, 1978. The order of detention has been
challenged by the detenu through his son-Firdous Ahmed.
02. The District Magistrate, Kishtwar, has detained Abdul Karim Butt, S/o
Late Mohd. Anwar Butt, R/o Bhadat Saroor, A/P Tangwari, Tehsil and
District Kishtwar, under Section 8(2) of the J&K Public Safety Act, 1978, to
prevent him from indulging in activities prejudicial to the maintenance of
the security of the Union Territory (UT) of J&K.
03. As per the dossier submitted by the Sr. Superintendent of Police,
Kishtwar, the detenu was involved in FIR No. 243/2019 registered under
Sections 13, 18, 19, 38, and 39 of the UAPA at Police Station Kishtwar. The
dossier alleged that the detenu provided logistical support and shelter to
militants associated with proscribed organizations, including his brother,
who was allegedly a Divisional Commander of the HM outfit.
04. The Detaining Authority, after considering the police dossier, arrived at its
subjective satisfaction that detaining the detenu was necessary to prevent him
from committing further offences and, accordingly, issued the detention order.
05. The impugned detention order has been assailed by the detenu on the
grounds that: (i) the detaining authority has failed to provide the necessary
material relied upon, such as the FIR, charge sheet, dossier, and other
documents forming part of the police challan; (ii) the relevant documents
were not supplied to the petitioner, rendering the detention illegal; (iii) the
respondents acted with mala fide intent by suppressing the fact that the
challan had already been presented and the trial was pending, thus,
rendering the detention order bad in law; (iv) the detenu and his family
members were unaware of their right to make a representation due to the
HCP No. 67/2024 Page 3 of 7
non-supply of material documents. This lack of awareness and absence of
relevant information further rendered the detention arbitrary and violative
of legal principles; (v) the detention order reflects non-application of
mind, as it was issued mechanically to curtail the liberty of the petitioner
without adherence to the provisions of the Public Safety Act, thus
infringing the fundamental rights guaranteed to the petitioner under the
Constitution of India.
06. The respondents have filed their counter affidavit and produced the
detention record. It is submitted that the detenu, Abdul Karim Butt, was
involved in activities which threaten public safety and the sovereignty of
the Union Territory of Jammu and Kashmir. He was aiding and abetting
members of proscribed organizations, including his brother, who is
alleged to be a Divisional Commander of the HM outfit. The detenuwas
working as an OGW (Over Ground Worker) actively involved in
supporting anti-national elements. His activities include providing
logistical support and sharing sensitive information related to security
forces, particularly in areas such as Dachhan and Padder. Despite being
granted bail in a prior case, it is submitted that he continued to engage in
activities that are considered prejudicial to public safety and detrimental
to the maintenance of public order. The Detaining Authority, thus,
deemed it necessary to detain him under the Public Safety Act to prevent
him from further pursuing such activities.
07. The respondents have submitted that the detention order was issued
in accordance with statutory and constitutional provisions, and the
grounds of detention were duly communicated to the detenu in a language
HCP No. 67/2024 Page 4 of 7
he understands. It is further submitted that preventive detention under the
Public Safety Act was essential to prevent him from engaging in activities
prejudicial to public order and that the grounds of detention are precise,
proximate, pertinent and relevant and clearly substantiate the subjective
satisfaction arrived at by the Detaining Authority.
08. Heard learned counsel for the parties and perused the record.
09. Perusal of the record reveals that the detenu has been detained for his
activities which were found to be prejudicial to the public peace and order. In
the grounds of detention, it has been stated that the detenu was involved in
aiding and abetting members of proscribed organizations providing logistical
support and sharing sensitive information related to movement of security
forces, particularly in areas such as Dachhan and Padder and that he was
enlisted as OGW of District Kishtwar in the year 2019. It is further stated
that the substantive laws of the land have failed to deceit the detenu from
carrying out such activities, accordingly, the order to prevent the detenu from
indulging in such activities was issued.
10. The detenue has been detained while relying on FIR No. 243/2019, under
Sections 13/18/19/38/39 UAPA registered in Police Station Kishtwar. The
detenue has been released on bail in this FIR on 17.04.2020, but this fact has
not been noticed by the detaining authority while pasing the order of detention.
This clearly put forth total non-application of mind by the detaining authority
which renders the detention unsustainable.
11. Similar issue has been dealt by the Hon‟ble Apex Court in case of
“Anant Sakharam Raut Vs. State of Maharashtra and another“
reported in AIR 1987 SC 137, and has held as under: –
HCP No. 67/2024 Page 5 of 7
“…We hold that there was clear non-application of mind on the
part of detaiing authority about the fact that the petitioner was
granted bail when the order of detention was passed. In the result
we set aside the judgment of the Bombay High Court under
appeal, quash the order of detention and direct that the petitioner
be released forthwith.”
12. The law on the subject is settled. If the detaining authority is
apprehensive that, in case the detenu is released on bail, he may again carry
on his criminal activities, then in such a situation, the authority should
oppose the bail application. In the event that bail is granted, the authority
should challenge such a bail order in a higher forum. Merely on the ground
that an accused in detention is likely to get bail, an order of preventive
detention should not ordinarily be passed. Para 24 of the judgment passed in
„Sama Aruna v. State of Telangana and another‟, AIR 2017 SC 2662,
reads as under:
“24. There is another reason why the detention order is unjustified. It
was passed when the accused was in jail in Crime No.221 of 2016. His
custody in jail for the said offence was converted into custody under
the impugned detention order. The incident involved in this offence is
sometime in the year 2002-2003. The detenu could not have been
detained preventively by taking this stale incident into account, more
so when he was in jail. In ‘Ramesh Yadav vs. District Magistrate, Etah
and others‘, this Court observed as follows:
“6. On a reading of the grounds, particularly the paragraph which we
have extracted above, it is clear that the order of detention was
passed as the detaining authority was apprehensive that in case the
detenu was released on bail he would again carry on his criminal
activities in the area. If the apprehension of the detaining authority
was true, the bail application had to be opposed and in case bail was
granted, challenge against that order in the higher forum had to be
raised. Merely on the ground that an accused in detention as an
under-trial prisoner was likely to get bail an order of detention under
the Nation Security Act should not ordinarily be passed.”
HCP No. 67/2024 Page 6 of 7
13. Learned counsel for the detenue submits that the Detaining Authority has
detained the detenue on the basis of stale grounds as there is no involvement of
the detenue in any activity thereafter. The grounds on which he has been
detained are cryptic and therefore, the order of detention is bad. There is merit
in the submission of the learned counsel for the detenue that there is no live link
between the last activity and the impugned detention order. The detaining
authority has relied upon FIR No. 243/2019 while passing the impugned order,
without considering that the detenu was admittedly granted bail in the said FIR,
and no further activities have been alleged against the detenu. Therefore, the
impugned detention order is liable to be quashed.
14. The FIR no.243/2019, on which the detaining authority has relied upon,
has been lodged in the year 2019 and the bail has been granted on
17.04.2020, however, the impugned detention order has been issued after
more than three years, on 01.08.2023.
15. In the present case, there is no cogent explanation coming forth from
perusal of the grounds of detention with reference to the live-link between
the prejudicial activities and the purpose of the detention and resultantly
the impugned detention order is liable to be quashed. In this regard
reference is made to the law laid down by the Hon‟ble Apex Court in „T.
A. Abdul Rahman v. State of Kerala‟ (1989) 4 SCC 741, and „Rajinder
Arora v. Union of India and others‟, (2006) 4 SCC 796.
16. The determination of whether the prejudicial activities of an
individual, necessitating the issuance of a detention order, are sufficiently
proximate to the time the order is made, or whether the live link between
the activities and the purpose of detention has been severed, depends on
HCP No. 67/2024 Page 7 of 7
the specific facts and circumstances of each case. However, when there is
an undue and prolonged delay between the prejudicial activities and the
passing of the detention order, the court must examine whether the
detaining authority has provided a satisfactory and reasonable explanation
for such delay. The court must also assess whether the causal link has
been broken in the context of the particular circumstances of the case.
17. In view of the aforesaid reasons, there is no need to advert to other
grounds raised in this petition. This petition is allowed and the detention order
No. 5th/DM/K/PSA of 2023 dated 01.08.2023, passed by the District
Magistrate, Kishtwar, under which detenu-Abdul Karim Butt, S/o Late Mohd.
Anwar Butt, R/o Bhadat Saroor, A/P Tangwari, Tehsil and District Kishtwar,
is quashed. Accordingly, the respondents are directed to release the detenu
from the custody forthwith, provided he is not required in any other case.
18. Detention record be returned to the learned counsel for the
respondents by the Registry forthwith.
(Sindhu Sharma)
Judge
Jammu:
19.12.2024
Michal Sharma/PS
Whether the judgment is reportable : Yes
Michal Sharma
I attest to the accuracy and
authenticity of this document
Jammu
23.12.2024 11:14
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