Noor Mohammad Bhat vs Union Territory Of J&K & Through Chief on 3 January, 2025

Jammu & Kashmir High Court – Srinagar Bench

Noor Mohammad Bhat vs Union Territory Of J&K & Through Chief on 3 January, 2025

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                               AT SRINAGAR
                              HCP No. 317/2024
                                             Reserved on: 31.12.2024
                                           Pronounced on: 03.01.2025

Noor Mohammad Bhat, Aged 54 years
S/o; Ghulam Mohammad Bhat
R/o; Kondenpeth Habbak Srinagar through
his Wife Haseena W/o, Noor Mohammad
Bhat R/o Kondenpeth Habbak Srinagar


                                                         .... Petitioner


                             Through:
                  Mr. Sheikh Hilal, Advocate.

                                    Vs.

1. Union Territory of J&K & through Chief
   Secretary,   to    Government   Home
   Department      J&K       Civil  Sectt.
   Jammu/Kashir at Srinagar.
2. District Magistrate, Srinagar
3. Senior Superintendent of Police Srinagar.
4. Station House Officer at igeen District,
   Srinagar.
5. Superintendent Central Jail, Jammu
   Kotbhalwal at Jammu.

                               Through:
                     Mr. Mr. Satinder Singh Kalla, AAG with
                     Ms. Rahella Khan, Assisting Counsel.


                                                         ....Respondents
CORAM:
  HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.

                              JUDGMENT

1. Petitioner, Haseena has filed the instant habeas corpus petition to
challenge and seek quashment of the order No. DMS/PSA/25/2024
dated 05.09.2024, for short impugned order, in terms whereof her
husband Noor Mohammad Bhat S/o Ghulam Mohammad Bhat R/o
HCP No.317/2024 Page 1 of 6
Kondenpeth Habbak, Srinagar, for short detenue, has been detained by
respondent No. 2, under the provisions of Public Safety Act, 1978, for
short Act, on variety of grounds taken in the memo of the petition.

2. Upon notice respondents have appeared and filed their counter
affidavit resisting the claim of the petitioner.

FACTUAL MATRIX:

3. The detenue is stated to have falsely been implicated in connection
with case FIR Nos. 24/2024, 81/2024, 123/2024, 126/2024, and
127/2024, of police station Nigeen registered under various penal
offences. The registration of these FIRs against the detenue are stated
to be result of vengeance of one Manzoor Ahmad Dar S/o Habibullah
Dar R/o Tailbal at whose instance the above said FIRs have come into
being. It is stated that the detenue and his daughter had given loan to
said Manzoor Ahmad Dar who, on demand, not only refused to return
the same but also filed complaint and sought registration of the cases
against the detenue which ultimately resulted in issuance of the
impugned order.

4. It is stated that the family members of the detenue approached
respondent No. 4-Station House Officer, Nigeen, who instead of
looking into the controversy detained them. It is further stated that
mere allegations leveled against the detenue in the aforementioned
FIRs cannot form a ground for invoking the provisions of Public
Safety Act 1978.

5. The impugned order is challenged inter alia on the grounds that the
same is bad in the eyes of law; is reflective of non-application of mind
on the part of the detaining authority; the dispute involved in the
present case explicitly attract the provisions of Negotiable Instruments
Act and not the provisions of Public Safety Act; is violative of the
fundamental rights of the detenue; is vague, cryptic; the detenue has
not been furnished the entire material to enable him to file a
representation against his detention; the detenue was already in
custody when the detention order was passed.

HCP No.317/2024 Page 2 of 6

6. Per contra the respondents in their counter affidavit have, while
refuting the allegations of the petitioner, stated that the detenue has got
engaged in illicit activities at a young age including lending money to
people at usurious interest rates or for extra money without registering,
buying and selling land in various locations, and deceiving people into
parting with their hard earned money; detenue was found to be sharing
the company with chronic miscreants/nuisances/thieves in district
Srinagar and with the help of his associates he provokes local youth of
his area towards antisocial activity; the anti social activities of the
detenue were aimed at to disturb the public order, peace and
tranquility; the detenue is involved in case FIR Nos. 24/2024, 81/2024,
123/2024, 126/2024, and 127/2024, of police station Nigeen, registered
under various penal offences including 419, 420, 120-B, 506 IPC, 20,
21, 22, „Money Lenders and Accredited Loan Provider Act, 2010‟; the
grounds of detention and other allied material, on the basis whereof the
detention order has been issued, have been furnished to the detenue;
the involvement of the detenue in the acts, for which five FIRs have
been registered, has led to the subjective satisfaction of the detaining
authority to detain the detenue under preventive detention; the
activities of the detenue were found to be highly prejudicial to the
maintenance of public order, therefore, preventive detention has been
ordered.

7. Heard learned counsel for the parties, perused the detention record and
considered the submissions made by the learned counsel for the
parties.

8. Learned counsel for the petitioner has mostly laid emphasis on the
grounds of non-application of mind, non-furnishing of entire detention
material to enable detenue to make an effective representation against
his detention.

9. It appears from the perusal of the record that the detenue was involved
in FIR Nos. 24/2024, 81/2024, 123/2024, 126/2024, and 127/2024, of
police station Nigeen, registered under various penal offences
including 419, 420, 120-B, 506 IPC, 20, 21, 22 „Money Lenders and

HCP No.317/2024 Page 3 of 6
Accredited Loan Provider Act, 2010‟ and was under custody at the
time when the impugned detention order has been passed.

10. The respondents do not, anywhere, reply or reflect that as to how the
substantial laws which had been pressed into service against the
detenue were not sufficient to deter the detenue from indulging in the
alleged subversive activities. There is explicit non-application of mind
on the part of the detaining authority for having not taken into
consideration the aspect of the substantial laws having been invoked
against the detenue and the bail having been granted in one of the
alleged criminal case.

11.The contention of the learned counsel for the petitioner that the
detenue has not been provided the requisite material so as to enable
him to move a representation against his detention cannot be accepted
as the respondents have sufficiently shown by the records that the
detenue was furnished the documents containing as many as 52
leaves. However, the contention as regards the relevance of such
documents cannot be brushed aside as it is well settled that it is the
sufficiency of relevant and necessary material that should weigh with
the detaining authority in arriving at the subjective satisfaction not the
wholly unnecessary, immaterial and irrelevant circumstances. I am
fortified in my view by the judgment of the Supreme Court rendered in
case titled “Nenavath Bujji Etc Vs. The State of Telangana and
Others” reported as 2024 SCC Online SC 367. It would be profitable
to reproduce sub-paras (i) (ii) and (iii) of the paragraph 43 herein:

(i) “The detaining Authority should take into consideration
only relevant and vital material to arrive at the requisite
subjective satisfaction.

(ii) It is an unwritten law, constitutional and administrative,
that wherever a decision making function is entrusted to
the subjective satisfaction of the statutory functionary,
there is an implicit duty to apply his mind to the pertinent
and proximate matters and eschew those which are
irrelevant and remote.

(iii) There can be no dispute about the settled preposition that
the detention order requires subjective satisfaction of the
HCP No.317/2024 Page 4 of 6
detaining authority, which, ordinarily, cannot be
questioned by the Court for the insufficiency of material.

Nonetheless, if the detaining authority does not consider
relevant circumstances or considers wholly unnecessary
immaterial and irrelevant circumstances, then such
subjective satisfaction would be vitiated.”

12. The Supreme Court in case titled “Jaseela Shaji vs. Union of India“

reported as (2024) 9 SCC 53, has held that the failure of the respondent
to supply all the relevant material to the detenue vitiates the detention.
It would be profitable to reproduce paragraphs 29 and 37 of the said
judgment herein as:

“29. There can be no doubt that it is not necessary to
furnish copies of each and every document to which a
casual or passing reference may be made in the narration
of facts and which are not relied upon by the Detaining
Authority in making the order of detention. However,
failure to furnish copies of such document/documents as
is/are relied on by the Detaining Authority which would
deprive the detenu to make an effective representation
would certainly amount to violation of the fundamental
right guaranteed under Article 22(5) of the Constitution of
India.

37.It is thus a settled position that though it may not
be necessary to furnish copies of each and every document
to which a casual or passing reference has been made, it
is imperative that every such document which has been
relied on by the Detaining Authority and which affects the
right of the detenu to make an effective representation
under Article 22(5) of the Constitution has to be supplied
to the detenu.

In our view, the documents relied on by the Detaining
Authority which form the basis of the material facts which
have been taken into consideration to form a chain of
events could not be severed and the High Court was not
justified in coming to a finding that despite eschewing of
certain material taken into consideration by the Detaining
Authority, the detention order can be sustained by holding

HCP No.317/2024 Page 5 of 6
that the Detaining Authority would have arrived at such a
subjective satisfaction even without such material.”

13. In view of the ratio laid down in the judgments supra any inaction on
the part of respondents to violate the safeguards provided by the statute
has been held to be prejudicial to the rights of the detenue.

CONCLUSION:

14. In the circumstances, the Court is of the considered view that the
safeguards provided by the statute have not been complied with in the
instant case resultantly depriving the detenue not only of his statutory
right but his cherished right of liberty too.

15. In the above background, the petition succeeds and is allowed as such
and as a sequel thereto, the impugned order bearing No.
DMS/PSA/25/2024 dated 05.09.2024, is quashed and the detenue
Noor Mohamad Bhat S/o Ghulam Mohammad Bhat R/o Kondenpeth
Habbak, Srinagar, is quashed and the detenue is directed to be released
from the preventive custody forthwith if not required in any other case.

16.The detention record be returned to the learned counsel for the
respondents against receipt.

17.Disposed of.

(MOKSHA KHAJURIA KAZMI)
JUDGE

SRINAGAR:

03.01.2025
“Shaista-PS”

Whether the judgment is reportable: Yes/No.

Whether the judgment is speaking: Yes

Shaista Rashid Shah
I attest to the accuracy and
HCP No.317/2024
authenticity of this document Page 6 of 6
15.01.2025 14:31