Jammu & Kashmir High Court – Srinagar Bench
Naveed Mudasir Wani vs Union Territory Of J&K And Anr on 24 December, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP(Crl) No.76/2023
Reserved on: 12.12.2024
Pronounced on: 24.12.2024
Naveed Mudasir Wani
.......Petitioner(s)
Through: Mr. Wajid Haseeb, Advocate
Versus
Union Territory of J&K and Anr.
.........Respondent(s)
Through: Mr. Syed Musaib, Dy. AG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this writ petition, Order No. 1/DMP/PSA/23
dated 12.01.2023, passed by District Magistrate, Pulwama, whereby detenu,
namely, Naveed Mudasir Wani S/o Mohammad Ishaq Wani R/o Ugergund
Tehsil Pulwama, District Pulwama has been placed under preventive
detention with a view to prevent him from acting in any manner prejudicial
to the security of the State, is sought to be quashed and the detenu set at
liberty on the grounds made mention of therein.
2. Respondents have filed counter affidavit, insisting therein that the
detenu along with other likeminded OGW’s is involved in providing all the
necessary logistic support to the militants like lodging, boarding, guiding
their movement through safe passages carrying their weapons from one place
to another and providing transport facility etc. He is also involved in anti
national/anti-social activities which are highly prejudicial to the security of
the State and thus poses a serious threat to the security situation prevailing in
the district and his remaining at large would have caused irreparable loss and
injury to the peace and security of the District. The activities narrated in the
grounds of detention have been reiterated in the reply affidavit filed by
respondents. The factual averments that detenu was not supplied with
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relevant material relied upon in the grounds of detention have been refuted. It
is insisted that all the relevant material, which has been relied upon by the
detaining authority, was provided to the detenu at the time of execution of
warrant.
3. I have heard learned counsel for the parties and considered the matter.
I have gone through the detention record produced by counsel for
respondents.
4. The main grounds on which the detention is sought to be quashed are
that the detenu was arrested by police in the month of November 2022 and
thereafter detained in terms of impugned order. The grounds of detention are
said to be vague, indefinite, cryptic, inasmuch as the detaining authority has
not attributed any specific allegation against the detenu, not even an iota of
connection is given in the grounds of detention connecting the detenu with
the allegations. It is also stated in the petition that the detaining authority as
per the dossier submitted by police authorities has passed impugned order
against Junaid Ishaq Wani and thereafter the police authorities vide
communication no.ASP/Pul/PSA/2023/36 dated 13.01.2023 requested
detaining authority to issue a Corrigendum to the effect that the name of the
detenu be read as ‘Naveed Mudasir Wani’ instead of ‘Junaid Ishaq Wani’
in the impugned order. It is, thus, rightly stated by counsel for petitioner that
at the first instance detaining authority has not perused any material
independently so as to reach to the conclusion as to against whom detention
order is to be passed inasmuch as detaining authority has not prepared
grounds of detention by itself, which is a prerequisite for it before passing
any detention order. It is stated that detaining authority seems to have
worked on the dictates of police authorities and has not enquired about the
existence of the facts by perusing the supporting material, as such, the
grounds of detention seems to be replica of the police dossier.
5. It is also averred in the petition that the detaining authority has not
furnished the material including dossier, relied upon by it, to detenu to
enable him to make an effective representation by giving his version of facts
attributed to him and make an attempt to dispel the apprehensions nurtured
by detaining authority concerning involvement of detenu in alleged
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activities; that grounds of detention do not give details or particulars of
terrorists to whom detenu is alleged to have met or of those who are alleged
to have been given assistance by the detenu. Further, the allegations made in
the grounds of detention have no nexus with detenu and detaining authority
has not given any reasonable justification to pass impugned order of
detention.
6. Taking into account the rival contentions of parties and submissions
made by learned counsel for parties, it would be relevant to go through the
detention record produced by counsel for respondents. The detention record,
inter alia, contains “Execution Report” and “Receipt of Grounds of
detention”. It would be advantageous to reproduce relevant portion of
“Execution Report ” hereunder:
“……accordingly copy of detention warrant and copy of
grounds of detention and other documents (09) leaves
have been provided to him…….”
7. It would also be appropriate to reproduce relevant portion of “Receipt
of Grounds of Detention” herein:
“Received grounds of detention issued by District
Magistrate, Pulwama vide order 01/DMP/PSA/23 dated
12.01.2023 and Corrigendum issued by District
Magistrate Pulwama No. DMP/PA/23/10013 dated
13.01.2023, in English consisting of (09) leaves in all
through Superintendent District Jail ……..”
Thus, it is unambiguously clear and evident from perusal of
“Execution Report” and “Receipt of grounds of detention” that only nine
leaves have been given to detenu.
8. Perusal of impugned detention order reveals that on the basis of
dossier placed before detaining authority by Senior Superintendent of Police,
Pulwama, vide no.CS/Pros/PSA/DPO/23/01-04 dated 11.01.2023, detaining
authority was satisfied that with a view to prevent detenu from acting in any
manner prejudicial to the security of the State, it was necessary to detain him
under necessary provisions of law. So, it is on the basis of dossier and other
connected material/ documents that impugned detention order has been
passed by detaining authority. The grounds of detention, when looked into,
gives reference to various alleged activities of detenu that appears to have
weighed with detaining authority, while making detention order. The
WP (Crl) No.76/2023
detention record, as noted above, does not indicate copies of dossier and
other connected material was ever supplied to detenu, on the basis whereof
impugned detention order has been passed. The aforesaid material, thus,
assumes importance in the facts and circumstances of the case. It needs no
emphasis, that detenu cannot be expected to make a meaningful exercise of
his Constitutional and Statutory rights guaranteed under Article 22(5) of the
Constitution of India and Section 13 of the J&K Public Safety Act, 1978,
unless and until the material on which detention order is based, is supplied to
him. It is only after detenu has all the said material available that he can
make an effort to convince detaining authority and thereafter the
Government that their apprehensions vis-à-vis his activities are baseless and
misplaced. If detenu is not supplied the material, on which the detention
order is based, he will not be in a position to make an effective
representation against his detention order. The failure on the part of the
detaining authority to supply the material, relied at the time of making the
detention order to the detenu, renders the detention order illegal and
unsustainable. In this regard I may draw support from the law laid down in
the cases of Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC
2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass
v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of
Maharashtra and others AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of
J&K & ors, 2009 (I) S.L.J 219.
9. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K.
Jha, 1987 (2) SCC 22 has held that it is only the procedural requirements,
which are the only safeguards available to the detenu, that is to be followed
and complied with as the Court is not expected to go behind the subjective
satisfaction of the detaining authority. In the present case, the procedural
requirements, as discussed above, have not been followed and complied by
the respondents in letter and spirit and resultantly, the impugned detention
needs to be quashed.
10. It may be appropriate to mention that perusal of grounds of detention
reveals that grounds of detention are vague and ambiguous, and do not refer
to any date, month or year of the activities, which have been attributed to
detenu. Detention in preventive custody on the basis of such vague and
WP (Crl) No.76/2023
ambiguous grounds of detention cannot be justified. It may not be out of
place to mention here that preventive detention is largely precautionary and
is based on suspicion. The Court is ill-equipped to investigate into
circumstances of suspicion on which such anticipatory action must be
largely based. The nature of the proceeding is incapable of objective
assessment. The matters to be considered by the detaining authority are
whether the person concerned, having regard to his past conduct judged in
the light of surrounding circumstances and other relevant material, is likely
to act in a prejudicial manner as contemplated by the provisions of the law
and, if so, whether it is necessary to detain him with a view to preventing
him from so acting. These are not the matters susceptible of objective
determination, and they could not have been intended to be judged by
objective standards. They are essentially the matters which have to be
administratively determined for the purpose of taking administrative action.
Their determination is, therefore, deliberately and advisedly left by the
Legislature to the subjective satisfaction of detaining authority which, by
reason of its special position, experience and expertise, would be best suited
to decide them. Thus, the Constitutional imperatives of Article 22(5) and the
dual obligation imposed on the authority making the order of preventive
detention, are twofold: (1) The detaining authority must, as soon as may be,
i.e. as soon as practicable, after the detention order is passed, communicate
to the detenu the grounds on which the order of detention has been made,
and (2) the detaining authority must afford the detenu the earliest
opportunity of making the representation against the order of detention, i.e.
to be furnished with sufficient particulars to enable him to make a
representation which, on being considered, may obtain relief to him. The
inclusion of an irrelevant or non-existent ground, among other relevant
grounds, is an infringement of the first of the rights and the inclusion of an
obscure or vague ground, among other clear and definite grounds, is an
infringement of the second of the rights. In either case there is an invasion of
the constitutional rights of the detenu entitling him to approach the Court for
relief. The reason why the inclusion of even a simple irrelevant or obscure
ground, among several relevant and clear grounds, is an invasion of the
detenu’s constitutional right is that the Court is precluded from adjudicating
WP (Crl) No.76/2023
upon the sufficiency of the grounds, and it cannot substitute its objective
decision for the subjective satisfaction of the detaining authority. Even if
one of the grounds or reasons, which led to the subjective satisfaction of the
detaining authority, is non-existent or misconceived or irrelevant, the order
of detention would be invalid. Where the order of detention is founded on
distinct and separate grounds, if any one of the grounds is vague or
irrelevant the entire order must fall. The satisfaction of detaining authority
being subjective, it is impossible to predicate whether the order would have
been passed in the absence of vague or irrelevant data. A ground is said to
be irrelevant when it has no connection with the satisfaction of the authority
making the order of detention. Irrelevant grounds, being taken into
consideration for making the order of detention, are sufficient to vitiate it.
One irrelevant ground is sufficient to vitiate the order as it is not possible to
assess, in what manner and to what extent, that irrelevant ground operated
on the mind of the appropriate authority, and contributed to his satisfaction
that it was necessary to detain the detenu in order to prevent him from acting
in any manner prejudicial to the maintenance of the public order or security
of the State. Reference in this regard is made to Mohd. Yousuf Rather v.
State of J&K and others, AIR 1979 SC 1925; and Mohd. Yaqoob v. State
of J&K &ors, 2008 (2) JKJ 255 [HC].
11. Based on the above discussion, Detention Order no. 1/DMP/PSA/23
dated 12.01.2023, issued against the detenu is quashed. As a corollary,
respondents, including Superintendent Jail concerned, are directed to set the
detenu at liberty forthwith provided he is not required in any other case.
Disposed of.
12. Detention record be returned to counsel for respondents
(Vinod Chatterji Koul)
Judge
Srinagar
24.12.2024
(Qazi Amjad Secy.)
Whether approved for reporting?No
WP (Crl) No.76/2023