Jammu & Kashmir High Court
Abdul Sattar vs Union Territory Of Jammu & Kashmir on 15 April, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 27.03.2025
Pronounced on: 15.04.2025
HCP No. 159/2024
CM No. 7628/2024
Abdul Sattar, aged 52 years ...Petitioner(s)
S/O Late Sh. Jamal Din
R/O Village Ponara Soni
Tehsil Basantgarh District Udhampur
through his son Muneer Ahmed.
Through: Mr. R.K.S Thakur, Advocate.
Vs
1. Union Territory of Jammu & Kashmir
through Commissioner/Secretary
Department of Home
Civil Secretariat, Jammu.
2. District Magistrate, Udhampur
3. Senior Superintendent of Police, Udhampur.
4. Superintendent, Central Jail, Jammu.
Respondent(s)
Through: Mr. Sumeet Bhatia, GA.
CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Through the medium of this Habeas Corpus Petition, the
petitioner-Abdul Sattar (hereinafter called „detenue‟)
seeks quashment of Order No. 08-PSA of 2024 dated
23.11.2024 (hereinafter called „detention order‟) passed
by the respondent No. 2-District Magistrate, Udhampur
2 HCP No. 159/2024
(hereinafter called „detaining authority‟) whereby and
whereunder in terms of Section 8 of the Jammu and
Kashmir Public Safety Act (for short, PSA), he had been
ordered to be detained under preventive detention.
02. It has been pleaded that the respondent No. 3-Senior
Superintendent of Police, Udhampur in his dossier has
mentioned that FIR No. 09/2022 came to be registered
against the detenue under section 379 IPC, 26(e) (f) & (g)
Indian Forest Act and in the said FIR, the detenue has
already been enlarged on bail and trial in the said FIR is
pending; that the detenue was called in the Police
Station, Basantgarh on 26.11.2024 and he was arrested;
that thereafter the detenue was taken and lodged in
Central Jail, Jammu, where he was provided the letter
No. DMU/JC/1270 dated 23.11.2024, whereby he has
been informed that his detention has been ordered.
03. It has been further pleaded in the grounds of his petition
that the allegations leveled in the FIR No. 09/2002
registered under Section 379 IPC and Section 26 of the
Forest Act registered by Police Station, Basantgarh are
false and incorrect and in the said FIR, the detenue has
been enlarged on bail; that FIR No. 09/2022 was
registered on 26.02.2022 and the order of detention has
been made on 23.11.2024 i.e.,. after two years and 9
3 HCP No. 159/2024
months; that the respondents No. 2 and 3, in the
grounds of detention and dossier, have stated that in the
said FIR No. 09/2022, the challan has been presented
and the detenue has been granted bail in the said case,
as such, the said FIR cannot be made basis for the
purpose of passing the order of detention, more so the
copy of the said challan has not been provided to the
detenue nor the same has been made part of the record;
that preventive action under Section 126 of BNSS have
been claimed to have taken against the detenue, yet no
record pertaining to said action haa been provided to the
detenue, infringing the fundamental rights of the detenue
with regard to non-supply of record, therefore,
documents on the basis of which detention order was
passed have not been provided to the detenue, rendering
him unable to make effective representation; that the
detention order has not been explained to the detenue in
the language he understood; that the grounds of
detention are nothing but reproduction of allegations
made by respondent No. 3 in the dossier
04. Pursuant to notice, the respondents have not filed
counter affidavit, despite several opportunities.
05. Learned counsel for the detenue, reiterating the
submissions made in the petition, has argued that the
4 HCP No. 159/2024
detenue had been detained illegally by the detaining
authority without application of mind and based only on
the dossier prepared by the police; that the FIR No.
09/2022 was registered on 26.02.2022 and the order of
detention has been passed on 23.11.2024 i.e. after two
years and nine months, as such, the order of detention
cannot be based on stale FIR; that there is no fresh
incident mentioned in the dossier; that in the dossier,
there is a mention of preventive action under section 126
BNSS but the said Section is attracted only when an
Executive Magistrate receives information that any
person was likely to commit breach of peace or disturb
the public tranquility etc and he was of the opinion that
there was sufficient ground for proceeding, he might
require such person to show cause why he should not be
ordered to execute a bond or bail bond for keeping peace
or such period, not exceeding one year as he thinks fit
but in the instant case, no such procedure has been
adhered to, under Section 126 of BNSS, rendering the
detention order bad; that in the grounds of detention, it
is stated that the detenue has remained involved in
harbouring and providing logistic support to the
terrorists and is also OGW in the record of Police Station,
Basantgarh but no record, whatsoever, has been provided
to the learned Executive Magistrate showing that the
5 HCP No. 159/2024
detenue has remained involved in harbouring and
providing logistic support to the terrorists and is also
OGW in the record of Police Station; that although
preventive action under section 126 of BNSS have been
taken against the detenue yet no record pertaining to
said action has been provided to the detenue rendering
him unable to file effective representation; that there is
no mention of fresh incident in the grounds of detention;
that the detention order has not been explained to the
detenue in the language he understood; that the grounds
of detention are nothing but reproduction of allegations
made by respondent No. 3 in the dossier. Lastly, he has
argued that the detention order be quashed.
06. Learned counsel for the respondents, ex adverso, argued
that the detaining authority, after carefully examining the
dossier and the relevant records attached with it, found
imperative to detain the detenue under the Public Safety
Act; that on the basis of intelligence inputs, the detaining
authority deemed it appropriate to detain the detenue
under the Public Safety Act; that all the relevant material
has been supplied to the detenue. Lastly he has argued
that the impugned detention order be upheld and the
petition filed by the detenue, being devoid of any merit
and substance, be rejected.
6 HCP No. 159/2024
07. Heard learned counsel for the parties, perused the
detention record and considered.
08. The impugned detention order has been challenged
mainly on the grounds, firstly that that the detention
order in question was based on stale reference of FIR of
the year 2022, secondly that no action has been taken
under section 126 of BNSS by the Executive Magistrate;
thirdly material with regard to proceedings under Section
126 BNSS with regard to the involvement of the detenue
in harbouring and providing logistic support to the
terrorists has not been provided to the detenue for
making an effective representation.
09. So far as the first ground of challenge that the detention
order in question was based on stale reference of FIR of
2022 is concerned, the detaining authority ought to have
considered this aspect of the matter while passing the
impugned detention order inasmuch as the detenue’s
involvement has been shown in the said FIR, which ex
facie shows that this FIR, by all stretch of reference, is
too remote to be a live link to consider a case of
preventive detention of a person and is stale reference to
have any nexus with the grounds of detention forming
basis for subjecting the detenue to preventive detention
custody.
7 HCP No. 159/2024
10. In the case of “Sama Aruna Vs State of Telangana
and others,” reported in (2018)12 SCC 150 against a
detention order dated 23.11.2016 passed by the
Commissioner of Police Rachakonda Commissionerate,
Rangareddy District, Telangana, the detenue, through his
wife, had preferred a writ petition challenging preventive
detention which came to be dismissed and the matter
reached before the Hon’ble Supreme Court of India in an
appeal. The order of preventive detention was based upon
the grounds of detention which came to be referred to six
criminal cases against the detenue, four of which of the
year 2007, one of 2013 and other of 2014. The detention
came to be questioned on the grounds of detention being
stale. The Hon’ble Supreme Court of India came to
consider the relevance of 9 to 14 years’ old incidents
resulting in FIRs through a grossly belated order of
detention. In paras 16 & 17, the Hon’ble Supreme Court
of India came up with the following reference:-
“16. Obviously, therefore, the power to detain, under
the Act of 1986, can be exercised only for preventing a
person from engaging in, or pursuing or taking some
action which adversely affects or is likely to affect
adversely the maintenance of public order; or for
preventing him from making preparations for engaging in
such activities. There is little doubt that the conduct or
activities of the detenu in the past must be taken into
account for coming to the conclusion that he is going to
engage in or make preparations for engaging in such
activities, for many such persons follow a pattern of
criminal activities. But the question is how far back?
There is no doubt that only activities so far back can be
8 HCP No. 159/2024considered as furnish a cause for preventive detention in
the present. That is, only those activities so far back in
the past which lead to the conclusion that he is likely to
engage in or prepare to engage in such activities in the
immediate future can be taken into account. In Golam
Hussain alias Gama v. Commissioner of Police, Calcutta
and Ors. (1974)4 SCC 530, this Court observed as follows:
“5. No authority, acting rationally, can be satisfied,
subjectively or otherwise, of future mischief merely
because long ago the detenu had done something evil To
Rule otherwise is to sanction a simulacrum of a
statutory requirement. But no mechanical test by
counting the months of the interval is sound. It all
depends on the nature of the acts relied on, grave and
determined or less serious and corrigible, on the length
of the gap, short or long, on the reason for the delay in
taking preventive action, like information of
participation being available only in the course of an
investigation. We have to investigate whether the causal
connection has been broken in the circumstances of
each case.
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.
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. See G. Reddeiah v.
Government of Andhra Pradesh and Anr. (2012) 2 SCC
389, and P.U. Iqbal v. Union of India and Ors. (1992) 1
SCC 434.”
11. In the case of “Khaja Bilal Ahmed Vs State of Telangana
and others,” (2020) 13 SCC 632 the Hon’ble Supreme
Court of India again came up dealing with the case of
9 HCP No. 159/2024
preventive detention based upon stale grounds. In this case,
the Hon’ble Supreme Court of India makes reference to its
judgment in the case of Sama Aruna Vs State of
Telangana and others (supra). In para 23, the Hon’ble
Supreme Court of India has stated its position as under:-
“………………….The satisfaction to be arrived at by the
detaining authority must not be based on irrelevant or
invalid grounds. It must be arrived at on the basis of
relevant material; material which is not stale and has a
live link with the satisfaction of the detaining authority.
The order of detention may refer to the previous criminal
antecedents only if they have a direct nexus or link with
the immediate need to detain an individual. If the
previous criminal activities of the appellant could
indicate his tendency or inclination to act in a manner
prejudicial to the maintenance of public order, then it
may have a bearing on the subjective satisfaction of the
detaining authority. However, in the absence of a clear
indication of a causal connection, a mere reference to the
pending criminal cases cannot account for the
requirements of Section 3. 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.”
12. So far as second ground of challenge that no action has
been taken under Section 126 of BNSS is concerned, it
transpires that in the grounds of detention, it is stated
that the detenue has remained involved in harbouring
and providing logistic support to the terrorists and is also
10 HCP No. 159/2024
OGW in the record of Police Station, Basantgarh, as such
the detenue was proceeded against under Section 126
BNSS by the Executive Magistrate but said Section has
not been complied with in totality as the Executive
Magistrate has not issued any show cause notice to the
detenue as to why he should not be ordered to execute a
bond or bail bond for keeping the peace for such period,
not exceeding one year.
13. The detaining authority seems to have wavered in its
satisfaction based on different grounds to pass the
impugned detention order against the detenue indicating
that the detenue was a known criminal whose activities
had instilled fear among the peaceful residents of the
area and also these activities pose a significant threat to
national security, however, without making mention of
any incident related to such activity except some vague
accusations that he had been provided logistic support as
an Over Ground Worker, the mere indication in the
grounds that the detenue was resident of the local area
where a CRPF Inspector had tragically lost his life makes
no sense as without any specific allegation against the
detenue, the detaining authority has made a mention of
an FIR registered way back in the year 2022 on
11.02.2022 wherein the detenue along with one Showkat
11 HCP No. 159/2024
Ali were found to have committed damage to the felled
dry trees and as such, both of them were booked under
the Indian Forest Act, 1927 and a chargesheet was laid in
the court. The detenue as an accused, however, was
admitted to bail. Besides the aforesaid FIR, a mention
has been made to some preventive action taken against
the detenue at the instance of Police Station, Basantgarh,
however, no record in that behalf was either served upon
the detenue or produced for the perusal of this court. In
view of the case having been registered under Indian
Forest Act, 1927 against the detenue and his no
involvement in any other case of national security or
public order being there, it appears that the detaining
authority had acted upon the dossier prepared by the
police only. Therefore, it shows that the detaining
authority has not drawn any subjective satisfaction while
passing the detention order.
14. So far as third ground of challenge that relevant material
has not been provided to the detenue is concerned, it is
established from the perusal of the execution report that
the detenue was provided thirty leaves including
detention order, corrigendum thereto, notice of detention,
grounds of detention, dossier of detention, copies of FIR,
statements of witnesses and other related documents
12 HCP No. 159/2024
which had been acknowledged by the detenue to the
Executing Officer Inspector Jonesh Kumar. The
respondents have, however, failed to substantiate with
regard to the detailed documentation made available to
the detenue so as to enable him to file a meaningful and
effective representation to the detaining authority or the
Government of Jammu and Kashmir, so much so that no
record pertaining to preventive action under section 126
BNSS has been provided to the detenue,
in the absence whereof, it could never be expected of the
detenue to make an effective representation against the
order of detention either to the Govt. or to the detaining
authority itself.
15. In Thahira Haris v. Government of Karnataka & Ors,
AIR 2009 SC 2184, the Apex Court after noticing various
judgments on similar issue held that it was imperative for
a valid continuance of detention that the detenue be
supplied all documents, statements and other materials
relied upon in the grounds of detention, failing which the
right of the detenue of making an effective representation
as enshrined under Article 22(5) of the Constitution,
would be violated.
16. As a sequel to the aforementioned discussion and
observations made hereinabove, the present petition is
13 HCP No. 159/2024
allowed. Consequently, impugned detention order is
quashed. The detenue is directed to be released forthwith
if not required in any other case. The detention record be
returned to the learned counsel for the respondents.
17. Disposed of accordingly.
(M A CHOWDHARY)
JUDGE
JAMMU
15.04.2025
Naresh/Secy
Whether order is speaking: Yes
Whether order is reportable: Yes
…
Naresh Kumar
2025.04.15 16:38
I attest to the accuracy and
integrity of this document
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