Jammu & Kashmir High Court – Srinagar Bench
Abdul Ahad Bhat vs Utof Jammu And Kashmir Through … on 20 January, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP(Crl) No. 153/2023
Reserved on:26.12.2024
Pronounced on:20. 01.2025
Abdul Ahad Bhat, Aged 52 years
S/o Abdul Khaliq Bhat
R/o Larkipora Tehsil Awantipora, District Pulwama
through his son Saqlain Ahad
.........Petitioner(s)
Through:
Mr. M. Ayoub Bhat, Advocate
Versus
1. UTof Jammu and Kashmir through Principal Secretary to Government,
Home Department J&K, Government, Civil Secretariat, Srinagar/Jammu.
2. District Magistrate, Pulwama
3. Superintendent Central Jail, Kotbhalwal, Jammu
......Respondent(s)
Through:
Mr. Hakim Aman Ali, Dy. AG
CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. Challenge is madein the instant petition, by the son of the detenue, to the
detention order No. DMP/PSA/23/11 dated 31.03.2023, for short “impugned
order”, issued by District Magistrate, Pulwama-respondent No.2 herein, whereby
one Abdul Ahad Bhat Son of Late Abdul Khaliq Bhat Resident of Larkipora
Tehsil Awantipora, District Pulwama,herein after referred to as “detenue”has
been placed under preventive detention, on the grounds taken in the memo of
petition.
BRIEF FACTS
WP(Crl) No. 153/2023 Page 1 of 7
2. Precisely, the case of the petitioner is that the detenue has been arrested
by the respondents on vague, irrelevant and non-existing grounds. The detenue is
stated to be an innocent peace-loving citizen who has been falsely detained
under preventive detention without any allegations against him warranting
exercise of such power. Furthermore, the detenue has not been proceeded against
through substantive law and nothing is being said as to why and how the
substantive laws would not have been effective against the detenue if at all there
was anything against him. The detenue inter alia challenges the impugned
detention order on the grounds that he has not been furnished all the material
which has been relied upon by the detaining authority in making the detention
order. The grounds of detention make mention of several activities of the
detenue, which are allegedly prejudicial to the Security of the State, but no
supporting documents/materials regarding such alleged illegal activities of the
detenue have been provided to the detenue for making an effective
representation against his detention;the detenue is an illiterate farmer as such,
cannot be expected to understand the contents of the impugned order and
grounds of detention which are couched in hyper technical English/legal
language, which prevented the detenue to file an effective representation against
his detention; the son of the detenue had filed a representation against the order
of detention before the respondents on 10.04.2023, but the same was not
considered by the detaining authority; the subjective satisfaction has not been
derived by the detaining authority itself which is a sine qua non for passing the
order of detention. The grounds of detention have been virtually formulated by
the concerned SSP as the dossier submitted by the SSP is the verbatim copy of
the grounds of detention. The respondent No. 2 in derogation of law, has not
applied his own mind as to whether the detention order was required to be
passed against the detenue; the detenue has been denied to make a representation
WP(Crl) No. 153/2023 Page 2 of 7
to the detaining authority within the prescribed time limit. The detenue has not
been informed about the time period for making a representation.
3. Per contra, it is stated by the respondents in their counter affidavit thatthe
activities of the detenue have been found prejudicial to the Security of the State,
as such, the Police recommended his preventive detention and in this behalf
submitted dossier supported by relevant material to the District Magistrate
whereafter the record/material was examined and after finding the preventive
detention of the detenue necessary, the order of detention was passed with the
sole aim and object to deter the detenue from acting in any manner which is
prejudicial to the Security of the State. The detenue was informed about his right
to make a representation against his detention and the one filed by his wife was
rejected on 19.04.2023, the grounds of detention additionally make a mention
that the detenue used to provide logistic support to the militants and there was a
likelihood that the detenue would have joined the militant ranks.
4. Heard learned counsel for the parties and considered the submissions
made and perused the detention record.
5. The perusal of the material placed on record would reveal that the
respondents have not effectively controverted the pleas raised by the detenue
in his petition. The petitioner in his petition has taken as many as 14 grounds
to question and challenge the veracity of the detention order, however, the
respondents in their counter affidavit have only replied a few of such grounds.
6. It needs no emphasis that the detenue 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 Jammu and
Kashmir Public Safety Act, 1978, unless and until the material on which the
WP(Crl) No. 153/2023 Page 3 of 7
detention order is based, is supplied to detenue. It is only after the detenue
has the entire material available, that he can make an effort to convince the
Detaining Authority and thereafter Government that their apprehensions, as
regards his activities, are baseless and misplaced. The learned counsel for the
detenue while making submissions had submitted that the detenue was not
provided the material, therefore, he could not file an effective representation
against his detention, which is controverted by the respondents by deriving
support from execution report forming part of detention record demonstrating
that the detenue has been provided as many as 14 leaves comprising detention
order 01 leaf, notice of detention 01 leaf, grounds of detention 02 leaves,
dossier of detention 04 leaves, copies of FIR, statement of witnesses and other
related relevant documents 06 leaves. The detention record, as stated
hereinbefore, makes mention of six leaves comprising of copy of FIR and
statement of witnesses having been provided to the detenue, however, there is
nothing on record to suggest that the detenue was involved in any criminal
case for which an FIR has been lodged, investigation commenced and
statement of witnesses recorded nor has any such assertion been taken by the
respondents. The execution report,forming part of detention record, to such
extent, thus, appears to be just a camouflage to escape the rigours of law. The
entire document “execution report” in essence, pales into insignificance
besides putting under cloud the veracity of the rest of the detention record. In
that view of the matter, the plea of the petitioner that detenue was not
provided the entire documents forming basis for his detention, cannot be
brushed aside and this Court has no reason to disbelieve the contention that
the detenue has been deprived of his right of making an effective
representation to the detaining authority for having not been provided the
WP(Crl) No. 153/2023 Page 4 of 7
entire documents. While holding so, I draw support from TahiraHaris etc.
etc. Vs. Government of Karnataka, reported as AIR 2009 SC 2184.
7. Another aspect of the matter is that the son of the detenue is on record
of having submitted a representation on 12.05.2023 to the detaining authority,
as would the receipt,dated 20.05.2023, placed on record show, which does not
appear to have been considered and decided as there is nothing available on
the file to suggest so. The respondents have not rebutted such claim of the
petitioner; however, they have referred to a representation dated 10.04.2023
purportedly submitted by the wife of the detenue which has been rejected in
terms of order dated 19.04.2023. The representations preferred by the wife
and the son of the detenue have been moved after the detention order was
approved by the Government on 05.04.2023, which implies that the detenue
has been deprived of his right of making a representation against his detention
before the detention order was approved by the Government, for, having not
been informed to do so. It has consistently been held by the Courts of law that
violation of any of the constitutional rightsof the detenue,by the detaining
authority,puts under cloud the whole detention order. Reliance in this behalf
is placed on the Judgment of Supreme Court titled as Sarabjeet Singh Mokha
Vs. The District Magistrate, Jabalpur &Ors., reported as2021 SCC online
SC 1019.Para 46 being relevant is taken note of:-
“46 By delaying its decision on the representation, the State Government
deprived the detenu of the valuable right which emanates from the provisions of
Section 8(1) of having the representation being considered expeditiously. As we
have noted earlier, the communication of the grounds of detention to the detenu
“as soon as may be” and the affording to the detenu of the earliest opportunity of
making a representation against the order of detention to the appropriate
government are intended to ensure that the representation of the detenu is
considered by the appropriate government with a sense of immediacy. The State
Government failed to do so. The making of a reference to the Advisory Board
could not have furnished any justification for the State Government to not deal
with the representation independently at the earliest. The delay by the State
Government in disposing of the representation and by the Central and State
Government in communicating such rejection, strikes at the heart of the
procedural rights and guarantees granted to the detenu. It is necessary toWP(Crl) No. 153/2023 Page 5 of 7
understand that the law provides for such procedural safeguards to balance the
wide powers granted to the executive under the NSA. The State Government
cannot expect this Court to uphold its powers of subjective satisfaction to detain
a person, while violating the procedural guarantees of the detenu that are
fundamental to the laws of preventive detention enshrined in the Constitution.”
8. Furthermore, the court is not convinced to accept the plea of the
respondents that detenue was not showing the signs of remorse after having
been bound down under Section 107 Cr.PC read with Section 151 Cr. PC, as
there is nothing on record in support of such contention. The respondents
cannot be expected to take recourse to hollow assertions only, as they
wereobliged, by law, to see that the detenue has indeed indulged in the similar
activities for which he was bound down and there was a reasonable prognosis
about his future conduct, in light of the well-articulated circumstances,that
similar activities would likely be repeated by the detenue. 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 incidents 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.”
9. Viewed thus, the petition is allowed and detention order
No.DMP/PSA/23/11 dated 31.03.2023 of District Magistrate, Pulwama-
WP(Crl) No. 153/2023 Page 6 of 7
respondent No.2 herein, whereby one Abdul Ahad Bhat Son of Late Abdul
Khaliq Bhat Resident of Larkipora Tehsil Awantipora, District Pulwamawas
detained, is quashed and the respondents are directed to release the detenue
forthwith, if not required in any other case.
10. Detention record be returned to the learned counsel for the respondents
against receipt.
11. Disposed of.
(MOKSHA KHAJURIA KAZMI)
JUDGE
Srinagar
20.01.2025
“Mohammad Yasin Dar”
Whether the Judgment is reportable: Yes/No.
Whether the Judgment is speaking: Yes/No.WP(Crl) No. 153/2023 Page 7 of 7
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