Jammu & Kashmir High Court – Srinagar Bench
Junaid Zahoor Bangroo 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
...
HCP No. 308/2024
Reserved on: 11.12.2024
Pronounced on: 24.12.2024
Junaid Zahoor Bangroo, age 30 years, S/o Zahoor Ahmad Bangroo R/o Malik Angan
Fateh Kadal, Srinagar through his brother Sameer Zahoor Bangroo, aged 33 years
....... Petitioner(s)
Through: Mr. Wajid Haseeb, Adv.
Versus
1. Union Territory of J&K through Principal Secretary, Home Department , J&K
Govt. Civil Sectt. Srinagar/Jammu
2. District Magistrate, Srinagar
3. Sr. Superintendent Srinagar.
.......Respondent(s)
Through: Mr. Bikramdeep Singh, Dy. AG.
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, Order no. DMS/PSA/24/2024 dated
05.09.2024 (impugned detention order) passed by District Magistrate, Srinagar –
respondent no. 2, (for short „detailing authority‟) whereby detenu, namely, Junaid
Zahoor Bangroo, S/o Zahoor Ahmad Bangroo R/o Malik Angan Fatch Kadal,
Srinagar has been placed under preventive detention with a view to prevent him
from acting in any manner 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. The case set up by the petitioner in the petition is that the detenu was
arrested in the first week of August 2024 by the Police Station Safa Kadal and
while being in illegal custody was shifted to Central Jail, Srinagar, to be detained
in terms of the impugned detention order. The allegations made in the grounds of
detention are vague, non-existent as the detaining authority has mentioned various
allegations but no specific allegations has been shown against the detenu, not even
an iota of connection is given in the grounds of detention connecting the detenu
with the allegations. It is also stated that the detention order has been passed
primarily in view of ensuing parliamentary elections, however said object is alien
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to the object as laid in Section 8 of PSA; inasmuch as the detaining authority has
not applied its mind to the facts of the case but has acted to the report submitted
by Sr. Superintendent of Police, Srinagar as the grounds of detention do not
indicate any criminal case being registered against the detenu at any point of time
till his lodgement except proceedings allegedly initiated under Section 107/151
Cr. P.C and 126/170 BNS for which he has been bound down for keeping peace
and tranquillity; inasmuch as the detaining authority has not prepared the grounds
of detention itself which is a pre requisite for it before passing any detention order
and detaining authority has relied only on the police dossier and seems to have
worked on the dictates of police authorities, as such, the grounds seems to be
replica of the police dossier; inasmuch as the representation submitted by the
detenu has not been considered nor relevant material as requested has been
furnished to the detenu when the detaining authority is constitutionally duty
bound to furnish the same. However, in the instant case, whatever material has
been furnished to the detenu, same is vague, imaginary, non -existent and without
basis.
3. It is also contended by petitioner that detaining authority has mentioned in
grounds of detention involvement of detenu in the proceedings allegedly initiated
under Section 107/151 Cr. PC and 126/170 BNS but has not furnished the
material, 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.
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 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.
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5. 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.
6. Learned counsel for petitioner states that the detaining authority in the
grounds of detention has shown its awareness about the booking of the detenu
under Section 107/151 of the Criminal Procedure Code and 126/170 BNS for
having been allegedly involved in the activities prejudicial to the peace and
tranquillity and on the said basis of some discreet reports claimed to have been
received by the detaining authority from police agencies, ordered the detention of
the detenu and that neither on account of his booking under Section 107/151 Cr.
PC and 126/170 BNS nor the detenu could have been detained under preventive
detention, if at all, the petitioner was involved in the activities prejudicial to the
peace and tranquillity nor on the basis of the so-called discreet report referred in
the grounds of detention having formed the basis for detention of the detenu as
same were not furnished to him to enable him to make an effective representation
against his detention. It is also stated by counsel for detenu that the grounds of
detention are vague, indefinite and cryptic, inasmuch as grounds of detention does
not disclose any activity on the basis whereof detention can be passed and that
detaining authority has not attributed any specific allegation against detenu.
7. On the contrary, Mr. Bikramdeep Singh, Dy.AG, while opposing the
submission of Mr. Wajid, would vehemently contend that the order under
challenge has been passed by the detaining authority validly and legally owing to
the activities of the detenu being prejudicial to the security of the State.
8. The submission that has been strenuously urged by learned counsel for
detenu and is also made mention of in the petition, is that representation having
been filed by detenu through his brother has not been considered by the
respondents. Perusal of the detention record does not reveal or indicate anything
with regard to receipt or consideration of the representation. It is also evident from
the pleadings of the respondents as contained in reply affidavit as well as
detention record that the representation submitted on behalf of the detenu has not
been considered by the respondents so far. Admittedly, a copy of representation,
placed on record by petitioner as Annexure IV to writ petition, has been filed by
detenu through his brother, against detention on 10.09.2024 and the same has not
been considered till date; inasmuch as respondents in their reply have remained
silent about filing of representation. Thus, there is a substance in the submission
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of learned counsel for detenu that non-consideration of representation of detenu
vitiates impugned order of detention. Law in this regard is settled as the Supreme
Court in Tara Chand v. State of Rajasthan and others, 1980 (2) SCC 321 and
Raghavendra Singh v. Superintendent, District Jail, Kanpur and others (1986)
1 SCC 650, has held that if there is inordinate delay in considering the
representation that would clearly amount to violation of the provisions of Article
22(5) as to render the detention unconstitutional and void.
9. In Rajammal v. State of Tamil Nadu and others, 1999(1) SCC 417, it has
been held as follows:
“It is a constitutional obligation of the Government to consider the
representation forwarded by the detenu without any delay. Though no
period is prescribed by Article 22 of the Constitution for the decision to
be taken on the representation, the words “as soon as may be” in clause
(5) of Article 22 convey the message that the representation should be
considered and disposed of at the earliest.”
10. In K. M. Abdulla Kunhi v. Unio of India (1991) 1 SCC 476, it has been
held as follows:
“…. it is settled law that there should not be supine indifference, slackness
or callous attitude in considering the representation. Any unexplained
delay in the disposal of the representation would be breach of the
constitutional imperative and it would render the continued detention
impermissible and illegal.”
11. In Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781, the Supreme
Court has held that the history of personal liberty, as is well known, is a history of
insistence on procedural safeguards. The expression „as soon as may be‟, in
Article 22 (5) of the Constitution of India, clearly shows the concern of the
makers of the Constitution that the representation, made on behalf of detenu,
should be considered and disposed of with a sense of urgency and without any
avoidable delay.
12. 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 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
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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 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
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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 and ors, 2008 (2) JKJ 255 [HC].
13. Grounds of detention must lay down the charge against detenu and it must
be precise, unequivocal and unambiguous. The detenu must be in a position to
give a specific reply/rebuttal to the charge and that is only possible where charge
is specific and precise. Else, the detenu is only able to give a bare denial by
stating that the allegations are false. If the grounds of detention are based on
unsubstantiated allegations, the same along with the order of detention can be
quashed as the detenu has not been given opportunity to make a viable
representation either to detaining authority or to advisory board. The opportunity
to represent to the authorities concerned is not a hollow formality. To detain a
person only based on allegations without there being any material to substantiate
those allegations would imperil the fundamental rights of an individual enshrined
under Article 21 of the Constitution. These observations have been made by the
Division Bench of this Court in LPA no.19/2024 titled as Showkat Ali v. Union
Territory of J&K and others, vide judgement dated 26.07.2024.
14. It is pertinent to mention here as has been vehemently stated by counsel for
petitioner that perusal of grounds of detention reveals that the same are replica of
dossier with interplay of some words here and there. This, thus, reflects non-
application of mind and in the process of deriving of subjective satisfaction has
become causality. While formulating grounds of detention, detaining authority
has to apply its own mind. It cannot simply reiterate whatever is written in the
dossier. Here it will be apt to notice the observations of the Supreme Court in the
case of “Jai Singh and ors vs. State of J&K” (AIR 1985 SC 764), which are
reproduced hereunder:
“First taking up the case of Jai Singh, the first of the petitioners
before us, a perusal of the grounds of detention shows that it is a
verbatim reproduction of the dossier submitted by the Senior6
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Superintendent of Police, Udhampur, to the District Magistrate
requesting that a detention order may kindly be issued. At the top
of the dossier, the name is mentioned as Sardar Jai Singh,
father‟s name is mentioned as Sardar Ram Singh and the address
is given as village Bharakh, Tehsil Reasi. Thereafter it is recited
“The subject is an important member of ……”
Thereafter follow various allegations against Jai Singh,
paragraph by paragraph. In the grounds of detention, all that the
District Magistrate has done is to change the first three words
“the subject is” into “you Jai Singh, S/o Ram Singh, resident of
village Bharakh, Tehsil Reasi”. Thereafter word for word the
police dossier is repeated and the word “he” wherever it occurs
referring to Jai Singh in the dossier is changed into “you” in the
grounds of detention. We are afraid it is difficult to find proof of
non-application of mind. The liberty of a subject is a serious
matter and is not to be trifled with in this casual, indifferent and
routine manner.”
15. From perusal of above quoted observations of the Supreme Court, it is
crystal clear that grounds of detention and dossier, if in similar language, go on to
show that there has been non-application of mind on the part of detaining
authority. As already noted, in the instant case, it is clear from the record that the
dossier and the grounds of detention contain almost similar wording which shows
that there has been non-application of mind on the part of the detaining authority.
The impugned order of detention is, therefore, unsustainable in law on this ground
alone.
16. For the reasons discussed above, the detention Order no.
DMS/PSA/24/2024 dated 05.09.2024, 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.
17. Disposed of.
18. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul)
Judge
Srinagar
24.12.2024
(Qazi Amjad, Secy)
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