Jammu & Kashmir High Court – Srinagar Bench
Dawood Fayaz Zargar vs Union Territory Of J&K Through … on 24 December, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP (Crl) No. 163/2023
Reserved on: 19.12.2024
Pronounced on: 24.12.2024
Dawood Fayaz Zargar, aged 28 years S/o Fayaz Ahmad Zargar R/o Gani Mohalla
Nowhatta, Srinagar.
....... Petitioner(s)
Through: Mr. Rehana, Advocate
Versus
1. Union Territory of J&K through Principal Secretary, Home Department , J&K
Govt. Civil Sectt. Srinagar/Jammu
2. District Magistrate, Srinagar
3. Senior Superintendent of Police, Srinagar
4. Superintendent Central Jail , Kotbhalwal, Jammu.
....Respondent(s)
Through: Mr. Bikramdeep Singh, Dy. AG with
Ms. Nowbahar Khan, Assisting Counsel
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, Order no. DMS/PSA/26/2023
dated 12.04.2023 (“impugned detention order” hereinafter) passed by
District Magistrate, Srinagar – respondent no. 2, (for short „detailing
authority‟) whereby detenu Dawood Fayaz Zargar, S/o Fayaz Ahmad Zargar
R/o Gani Mohalla Nowhatta, Srinagar,(for brevity “detenu”) has been placed
under preventive detention with a view to prevent him from indulging in the
activities which are prejudicial to the maintenance of security of the State, is
sought to be quashed and the detenu set at liberty on the grounds made
mention of therein
2. The case set up by the petitioner in the petition is that the detenu was
earlier arrested in the year 2017 in connection with FIR No 51/2017 under
Section 13 ULA (P) Act, 302, 148, 149, 392 and 341 RPC, by Police Station
Nowhatta, Srinagar. After completing the investigation of the case, challan
was produced before the Court of competent jurisdiction and bail was
granted. However, detenu was then placed under preventive detention vide
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Order No.DMS/ PSA/36/2022 dated 09.04.2022 on the ground of preventing
him from acting in any manner “prejudicial to maintenance of public order”.
The said order of detention was challenged in WP (Crl) No.197/2022. The
aforesaid detention order expired on 08.04.2023. However, detaining
authority instead of releasing the detenu has passed impugned detention
Order No.DMS/PSA/26/2023 dated 12.04.2023 on the same and similar
grounds which were made use of in earlier detention order. It is also stated
that in the earlier detention order, the detaining authority had shown that the
activities of the detenu were highly “prejudicial to the maintenance of public
order” while making reference to the FIR nos.54/2011; 85/2011; 14/2013
96/2015; 93/2016; 94/2016; 96/2016 and 51/2017, whereas in the impugned
detention order the detaining authority has mentioned that activities of
detenu are “prejudicial to the maintenance of security of the State” while
making reference and relying upon the same FIRs, which had been
mentioned in earlier detention order. This reflects total non-application of
mind on the part of the detaining authority. It is also stated by petitioner that
the detenu is neither involved in any fresh FIR nor any fresh prejudicial
activity is alleged against him, as such, impugned detention order is in
violation of Article 22(5) of Constitution of India deserves to the quashed. It is
also averred that detaining authority has passed the impugned detention order
mechanically without application of mind, inasmuch as the grounds of detention
are vague, indefinite, cryptic, inasmuch as the detaining authority has not
attributed any specific allegation against the detenu; that the detaining authority in
the grounds of detention has mentioned involvement of detenu in FIR Nos.
54/2011; 85/2011; 14/2013 96/2015; 93/2016; 94/2016; 96/2016; 51/2017;
52/2017 and 19/2019 but has not furnished the material including dossier, copy
of FIRs and copies of statements recorded under 161 or 164 Cr. P.C, 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. It is further contended that the Constitutional and Statutory procedural
safeguards have not been complied with in the instant case and unequivocally
reflects and shows non-application of mind on the part of detaining authority.
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3. Respondents have filed reply affidavit, insisting therein that the activities
indulged in by detenu are highly prejudicial to the maintenance of security of
the State and, therefore, his remaining at large is a threat to the security of
State. 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 upon by the detaining authority, was provided to the detenu at the time of
execution of warrant.
4. I have heard learned counsel for parties and considered the matter. I have
gone through the detention record produced by the counsel appearing for
respondents.
5. Learned counsel for petitioner states that notwithstanding expiry of
earlier detention order, respondents have again placed detenu under preventive
detention in terms of impugned order of detention. His next submission is that
same grounds of detention have been framed and relied upon by detaining
authority to place detenu under preventive detention in terms of impugned
order of detention, which had been relied upon by detaining authority while
passing earlier detention order, which detention order had expired and activities
alleged therein and reference made therein to FIRs could not have been again
relied upon in fresh detention order. This, according to him, reflects non-
application of mind on the part of detaining authority. Learned counsel also
submits that detaining authority has not given any fresh grounds for detention
of detenu although a passing reference has been made in the grounds of
detention with respect to the report of Senor Superintendent of Police, Srinagar,
that the activities of the detenu are highly prejudicial to the security of the State
and normal law of land is not sufficient to deter the detenu from his nefarious
activities and that during his detention period, detenu continued propagation of
secessionist ideology and motivating jail inmates to rise against Government by
whatever means. Moreover, he did not show signs of any change of ideology
during his lodgement and used to discuss the future strategy for carrying
forward the secessionist activities in the valley which itself does not amount to
fresh ground when most of the incidents or facts/ grounds are taken from earlier
grounds of detention and, therefore, impugned detention order is bad in law
because no fresh ground has been mentioned in second detention order.
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6. The earlier detention order No.DMS/ PSA/36/2022 dated 09.04.2022
had outlived its life upon completion of one year because detenu in terms of
said order had been placed under detention to prevent him from acting in any
manner “prejudicial to maintenance to public order”. The same grounds
could not have been relied upon for making a fresh detention order,
impugned herein. The authoritative judicial pronouncements on the subject are
that even if the order of detention comes to an end either by revocation or by
expiry of the period of detention, there must be fresh facts for passing a
subsequent detention order. In Chotka Hembram v. State of West Bengal and
others, AIR 1974 SC 432, it was observed that if no fresh fact comes into being
after the date of revocation or expiry as may warrant the making of an order of
detention, the requisite condition precedent to the making of the subsequent
detention order would be non-existent and it would not be permissible to make
a subsequent order of detention.
7. For the foregoing reasons and in view of settled legal position, the fresh
order of detention on the self-same and identical grounds, is vitiated in the law
and, therefore, could not sustain. My views are supported by a three Judge
Bench judgement of the Supreme Court rendered in the case of Ibrahim
BachuBafan v. State of Gujarat (1985) 2 SCC 24. While noticing similar
provisions of the Conservation of Foreign Exchange and provisions of
Smuggling Activities Act 1974 (COFEPOSA), Supreme Court in paragraph 10
has held thus:
” …The power conferred under clauses (a) and (b) of sub-section (1) of
Section 11 is in fact extension of the power recognized under Section 21 of
the General Clauses Act and while under the General Clauses Act, the
power is exercisable by the authority making the order, the named
authorities under clauses (a) and (b) of Section 11 (1) of the Act are also
entitled to exercise the power of revocation. When the High Court exercises
jurisdiction under Article 226 of the Constitution it does not make an order
of revocation. By issuing a high prerogative writ like habeas corpus or
certiorari it quashes the order impugned before it and by declaring the order
to be void and striking down the same it nullifies the order. The ultimate
effect of cancellation of an order by revocation and quashing of the same in
exercise of the high prerogative jurisdiction vested in the High Court may be
the same but the manner in which the situation is obtained is patently
different and while one process is covered by Section 11(1) of the Act, the
other is not known to the statute and is exercised by an authority beyond the
purview of sub-section (1) of Section 11 of the Act. It is, therefore, our clear
opinion that in a situation where the order of detention has been quashed by
the High Court, sub-section (2) of Section 11 is not applicable and the
detaining authority is not entitled to make another order under Section 3 of
the Act on the same grounds”.
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8. The above judgement was subsequently followed by the Supreme Court
in the case of Chhagan Bagwan Kahar v. N. L. Kalna and otehrs, 1989 AIR
1234. Referring to the earlier judgement in Ghulam Nabi Zaki v. State of
Jammu and Kashmir, 1970 (3) SCR 35: 1971 CriLJ (N) 24, which was
rendered in the context of J&K Public Safety Act, 1978, and also taking note of
the Constitution Bench judgement in the case of Hadibandhu Das v. District
Magistrate Cuttak AIR 1969 SC 43, the Supreme Court in the case supra
concluded thus:
“… It emerges from the above authoritative judicial pronouncements that
even if the orders of detention come to an end either by revocation or by
expiry of the period of detention there must be fresh facts of passing a
subsequent order. A fortiori when a detention order is quashed by the
Court issuing a high prerogative writ like habeas corpus or certiorari the
grounds of the said order should not be taken into consideration either as a
whole or in part even along with the fresh grounds of detention for
drawing the requisite subjective satisfaction to pass a fresh order because
once the Court strikes down an earlier order by issuing rule it nullifies the
entire order. In the present case, no doubt, the order of detention contains
fresh facts. In addition to that the detaining authority has referred to the
earlier detention order and the judgement of the High Court quashing it,
presumably for the purpose of showing that the detenu in spite of earlier
detention order was continuing his bootlegging activities”.
9. It is, thus, seen that detaining authority, while arriving at subjective
satisfaction, has not only to take into consideration future prospectus of
detenu indulging in similar activities but has also to take into consideration
the grounds on which earlier orders of detention had been passed. The
judgement referred to above lends support to the contention of learned
counsel for petitioner that the detention order, without fresh material, was
not sustainable.
10. In addition to above, taking into account the rival contentions of parties
and submissions made by learned counsel for parties vis-à-vis furnishing of the
material relied upon by detaining authority, 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 detention order (01 leaf), Notice of detention (01 leaf)
grounds of detention (03 leaves), Dossier of detention (Nil)
Copies of FIR, Statements of witnesses and other related
relevant documents (05 leaves), (Total 10 Leaves) have been
handed over to the above said detenu…..”
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11. It would also be appropriate to reproduce relevant portion of “Receipt
of Grounds of Detention” herein:
“Received copies of detention order (01 leaf), Notice of
detention (01 leaf) grounds of detention (03 leaves) Dossier of
detention (Nil) Copies of FIR, Statements of witnesses and
other related relevant documents (05) Total 08 leaves through
executing officer……..”
Thus, it is evident from perusal of Execution Report and Receipt of
grounds of detention that only 10 leaves have been given to detenu.
12. Perusal of impugned detention order reveals that on the basis of dossier
placed before detaining authority by Senior Superintendent of Police, Srinagar
vide no. LGL/Det-3176/2023/9343-46 dated 08.04.2023; 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, including registration of 10
FIRs, that appears to have weighed with detaining authority, while making
detention order. The detention record, as noted above, does not indicate that
copies of dossier, copies of FIRs, material collected during investigation of
these FIRs, 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
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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.
13. 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 with by the respondents in letter and
spirit and resultantly, the impugned detention needs to be quashed.
14. For the reasons discussed above, the detention Order no.
DMS/PSA/26/2023 dated 12.04.2023, passed by District Magistrate,
Srinagar, is quashed. Respondents, including Superintendent Jail concerned,
are directed to release the detenu forthwith, provided he is not required in
any other case.
15. Disposed of.
16. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul)
Judge
Srinagar
24.12.2024
(Qazi Amjad, Secy)
Whether the order is reportable: Yes/No.
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