Jammu & Kashmir High Court – Srinagar Bench
Gowhar Ayoub Fafoo vs Union Territory Of J&K And Ors on 24 December, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No.55/2023
Reserved on: 12.12.2024
Pronounced on: 24.12.2022
Gowhar Ayoub Fafoo .......Petitioner(s)
Through: Mr. G. N. Shaheen, Advocate
Versus
Union Territory of J&K and Ors. .........Respondent(s)
Through: Mr. Syed Musaib, Dy. AG.
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. Through the medium of this writ petition, Order No. 03/DMP/PSA/23
dated 16.01.2023, passed by District Magistrate, Pulwama, whereby detenu,
namely, Gowhar Ayoub Fafoo S/o Mohammad Ayoub Fafoo R/o Ghat Takuna
Tehsil Awantipora District Pulwama (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 Security of the State, is sought to be
quashed and the detenu set at liberty on the grounds made mention of therein.
2. I have heard learned counsel for the parties and considered the matter.
3. The main grounds on which the impugned detention is sought to be
quashed are that the grounds of detention are vague, indefinite, cryptic as the
detenu is not involved in any case or FIR and the allegations mentioned in the
grounds of detention are without any basis or material record and passing of
detention order on such allegations is unjustified and abuse of process of law
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; 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
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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.
4. Respondents have filed reply affidavit, insisting therein that the activities
indulged in by detenu are highly prejudicial to the security of the State and,
therefore, his remaining at large is a threat to the security of the 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. Thus, all statutory requirements and constitutional
guarantees have been fulfilled and complied with by the detaining authority and
the detaining authority after arriving at subjective satisfaction has passed the
order of detention.
5. 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 detention Papers”. 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 (02 leaves), Dossier of detention (Nil) Copies
of FIR, Statements of witnesses and other related relevant
documents (Nil), (Total 04 Leaves) have been handed over to the
above said detenu…..”
6. 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 (02 leaves) Dossier of detention (Nil)
Copies of FIR, Statements of witnesses and other related relevant
documents (Nil) Total 04 leaves……”
Thus, it is unambiguously clear and evident from perusal of Execution
Report and Receipt of grounds of detention that only four leaves have been
given to detenu.
7. Perusal of impugned detention order reveals that on the basis of dossier
placed before detaining authority by Senior Superintendent of Police, Pulwama,
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vide no.Conf/PSAZ/2023/01-04 dated 14.01.2023, 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, give
reference to various alleged activities of detenu that appears to have weighed
with detaining authority to make detention order. The detention record, as
noted above, does not indicate that 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 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 AasiyaIndrabi
v. State of J&K &ors, 2009 (I) S.L.J 219.
8. 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
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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
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
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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, the petition is disposed of and Detention
Order no.03/DMP/PSA/23 dated 16.01.2023, issued by District Magistrate,
Pulwama against detenu is quashed. Respondents, including Superintendent Jail
concerned, are directed to release the detenu forthwith, provided he is not
required in any other case. Disposed of.
11. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul)
Judge
SRINAGAR
24.12.2024
(Qazi Amjad Secy.)
Whether approved for reporting?No
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