Jammu & Kashmir High Court – Srinagar Bench
Mohammad Azam Qureshi 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. 77/2023
Reserved on: 12.12.2024
Pronounced on: 24.12.2024
Mohammad Azam Qureshi .......Petitioner(s)
Through: None
Versus
Union Territory of J&K and Anr. .....Respondent(s)
Through: Mr. Bikramdeep Singh, Dy. AG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. Through the medium of this writ petition, Order No.162/DMS/PSA/2023
dated 07.02.2023, passed by District Magistrate, Shopian, whereby detenu,
namely, Mohd Azim Qurishi S/o Late Ab. Haq Qurishi R/o Baderhama Tehsil
and District Shopian, has been placed under preventive detention with a view
to prevent him from indulging in the activities which are prejudicial to the
security of the UT/Country, is sought to be quashed and the detenu set at liberty
on the grounds made mention of therein.
2. Respondents have filed Reply Affidavit, insisting therein that the detenu
along with other likeminded OGWs 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 antinational/antisocial
activities which are highly prejudicial to the security and sovereignty and
territorial integrity of the UT/Country 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 relevant material relied upon in the grounds of detention have
been refuted. It is insisted that all the relevant material, which has been relied
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upon by the detaining authority, was provided to the detenu at the time of
execution of warrant.
3. I have gone through the contents of petition and reply. I have heard
counsel for respondents 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 grounds of detention are vague, indefinite, cryptic, inasmuch as the
detaining authority has not attributed any specific allegation against detenu;
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 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.
5. Taking into account the rival contentions of 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: –
“The detenu along with relevant documents i.e.
detentionwarrant and grounds of detention have been handed
over to jail authorities of District Jail, Baramulla….”
6. It would also be appropriate to reproduce relevant portion of “Receipt of
Grounds of Detention” herein:
“Receives the grounds of detention from District Shopian vide
No.162/DMS/PSA/2023 dated:- 07.02.2023 consisting of (03)
leaves through Superintendent, District Jail Baramulla ….”
Thus, it is unambiguously clear and evident from perusal of “Execution
Report” and “Receipt of grounds of detention” that only 03 leaves have been
given to detenu.
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7. Perusal of impugned detention order reveals that on the basis of dossier
placed before detaining authority by Senior Superintendent of Police, Shopian,
vide no. CS/D-1/2023/592 dated 28.01.2023, detaining authority was satisfied
that with a view to prevent detenu from acting in any manner prejudicial to the
security of the UT/country, 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 detention record,
as noted above, does not indicate copies of dossier and other connected
materialwas 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. Reference is made to 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 AasiyaIndrabi v. State of J&K &ors, 2009 (I) S.L.J 219.
8. In Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22it
has held by the Supreme Court 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
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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.
9. 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 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
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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
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].
10. Based on the above discussion, Detention Order
no.162/DMS/PSA/2023 dated 07.02.2023, issued by District Magistrate,
Shopian, against 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.
11. 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? Yes/No
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