Jammu & Kashmir High Court – Srinagar Bench
Parvaiz Ahmad Fashoo vs U.T Of Jammu & Kashmir Through on 3 March, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Through virtual mode)
Reserved on: 24.02.2025
Pronounced on: 03.03.2025
LPA No. 308/2024 in
HCP No. 187/2024
Parvaiz Ahmad Fashoo, aged 35 years
S/O Ab. Rashid Fashoo
R/O Boat Colony Khanbal,
District Anantnag, through his father.
....Appellant(s)
Through: Mr. Wajid Md. Haseeb, Advocate.
Vs
1. U.T of Jammu & Kashmir through
Additional Chief Secretary,
Home Department, J&K Govt.,
Civil Sectt., Srinagar/Jammu.
2. Divisional Commissioner, Kashmir.
3. Senior Superintendent of Police, Anantnag.
..... Respondent(s)
Through: Mr. Faheem Nisar Shah, GA.
CORAM: HON‟BLE THE CHIEF JUSTICE
HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
Per: Chowdhary-J
01. The appellant-Parvaiz Ahmad Fashoo (for short „detenue‟)
has filed this Letters Patent Appeal, assailing the Order
2 LPA No. 308/2024
dated 24.10.2024 passed by the learned Single Judge in
HCP No. 187/2024 titled “Parvaiz Ahmad Fashoo Vs. U.T
of J&K & Anr” whereby the petition filed by the detenue
was dismissed upholding his detention order passed by the
respondent No. 2-Divisional Commissioner, Kashmir (for
short, „detaining authority‟) vide Order No. DIVCOM-
“K”/114/2024 dated 01.05.2024 (for short, „detention
order‟).
02. The impugned order passed by the learned writ court has
been challenged on the grounds, that the grounds taken by
the appellant in the writ petition were not considered by the
learned Single Judge while considering the petition; that
the grounds of detention have no nexus with the detenue
and have been fabricated by the police in order to justify
the detention order; that the learned Single Judge has
neither appreciated the grounds referred in the petition nor
the law referred on the subject.
03. It has been alleged that the detention order has been
passed by the respondent No. 2 without application of his
mind and no independent satisfaction has been recorded by
the detaining authority while passing the detention order;
that the grounds of detention are replica of police dossier to
such an extent that the detaining authority has not
changed the language of dossier while drafting the grounds
of detention; that the allegations mentioned in the grounds
of detention have no nexus with the detenue and have been
3 LPA No. 308/2024
fabricated by the police in order to justify its illegal action of
detaining the detenue; that the detenue was already
admitted to bail in the cases on the basis of which
detention order has been passed and there is no fresh
allegation as such, the apprehension of the detaining
authority has no legal basis; that the last activity which has
been alleged in the grounds of detention has taken place in
September, 2019 and thereafter no fresh activity has taken
place whereras, the detention order has been passed in
May, 2024 after a delay of more than five years; that the
detaining authority has not prepared the grounds of
detention by itself which is a pre-requisite before passing
any detention order and that the detaining authority has
relied upon the police dossier only and has not considered
any supporting material.
04. It is further asserted in the grounds that the detaining
authority seems to have worked on the dictates of police
authorities and has not enquired about the existence of the
facts by perusing the supporting material; that the detenue
has not been supplied the relevant material based on
which, the detaining authority has recorded its satisfaction;
that the detenue has filed a representation before the
respondents but the same was not considered, in due
course of law.
05. Learned counsel for the detenue has, in line with the
memorandum of appeal and grounds taken therein, argued
4 LPA No. 308/2024
that the last activity attributed to the detenue had allegedly
taken place in the year 2019 and thereafter no fresh
activity has been attributed to the detenue; that there is a
gap of more than five years between the last alleged activity
which renders the detention order unreasonable and
unjustified; that the respondent No. 3-Superintendent of
Police, Anantnag has recommended the detention order on
06.01.2024, however, it has been passed on 01.05.2024,
after a delay of about four months which also renders the
impugned detention order unreasonable and unjustified.
06. He has further argued that the respondent No. 2 has not
considered the representation filed by the detenue in due
course of time rendering the impugned order passed by the
writ court vitiated as the writ court has not considered this
aspect of the matter while passing the impugned judgment;
that the detenue has also not been provided with the
dossier along with connected material on the basis of which
the detaining authority has passed the detention order
against the detenue.
07. Learned counsel for the respondents, ex adverso, argued
that the detenue was ordered to be detained in preventive
detention by the detaining authority, vide detention order
dated 01.05.2024 to prevent him from acting in any
manner prejudicial to the security of the State; that all the
relevant documents, on the basis of which detention order
5 LPA No. 308/2024
was passed against the detenue, were duly supplied to the
detenue.
08. He further argued that the impugned order has been
passed by the writ court on sound principles and does not
call for any interference by this court, invoking appellate
jurisdiction and prayed for dismissal of the appeal and
upholding the impugned order passed by the writ court.
09. Heard learned counsel for the parties and perused the
record.
10. The impugned judgment has been assailed, inter alia, on
two primary grounds, firstly, that the learned Single Judge
has not considered the arguments advanced by the learned
counsel for the appellant that the detention order in
question was based on stale references of FIRs of the year
2015 and 2017 and secondly, that the detention order was
passed after a delay of about four months after the
submission of dossier by the Senior Superintendent of
Police, Anantnag.
11. So far as the first ground of challenge that the detention
order in question was based on stale references of FIRs of
the year 2015 and 2017 is concerned, the learned Single
Judge ought to have considered this aspect of the matter
while passing the impugned order inasmuch as the
petitioner’s involvement has been shown in three criminal
cases of 2015 and 2017 which ex facie show that these
6 LPA No. 308/2024
three criminal cases, by all stretch of reference, are too
remote to be a live link to consider a case of preventive
detention of a person and are stale references to have any
nexus with the grounds of detention forming basis for
subjecting the petitioner to preventive detention custody.
12. 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 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
7 LPA No. 308/2024preventing 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
considered 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
8 LPA No. 308/2024389, and P.U. Iqbal v. Union of India and Ors. (1992) 1
SCC 434.”
13. 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 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.”
14. So far as second ground of challenge that the detention
order was passed after a delay of about four months after
the submission of dossier by the Senior Superintendent of
9 LPA No. 308/2024
Police, Anantnag is concerned, the learned Single Judge
has also not considered this aspect of the matter.
15. From a perusal of the detention order, it transpires that the
Senior Superintendent of Police, Anantnag has submitted a
dossier and other material for detaining the appellant on
06.01.2024 but the detaining authority took almost four
months for passing the detention order dated 01.05.2024
detaining the appellant under Section 3 of Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 which renders the detention order
unjustified and unreasonable. Law on this point is no
longer res integra. The Apex Court in “Adishwar Jain Vs.
Union of India & Anr” reported as (2006) 11 SCC 339
held in paragraph 15 as under:
“15. Delay, as is well known, at both stages has to
be explained. The court is required to consider the
question having regard to the overall picture. We
may notice that in Sk. Serajul v. State of West
Bengal [(1975) 2 SCC 78], this Court opined:
“There was thus delay at both stages and this delay,
unless satisfactorily explained, would throw
considerable doubt on the genuineness of the
subjective satisfaction of the District Magistrate,
Burdwan recited in the order of detention. It would
be reasonable to assume that if the District
Magistrate of Burdwan was really and genuinely
satisfied after proper application of mind to the
materials before him that it was necessary to detain
the petitioner with a view to preventing him from
acting in a prejudicial manner, he would have acted
with greater promptitude both in making the order
10 LPA No. 308/2024of detention as also in securing the arrest of the
petitioner, and the petitioner would not have been
allowed to remain at large for such a long period of
time to carry on his nefarious activities…”
Similar view was reiterated by the Apex Court in case titled
“Sushanta Kumar Banik Vs. State of Tripura & Ors“
reported as 2022 (0) AIR (SC) (Cri) 1522.
16. In view of the law laid down by the Apex Court and
discussed hereinabove, this Court reaches to the
inescapable conclusion that the detention order passed by
the detaining authority, which had been impugned before
the writ court, was passed on stale grounds and there was
no live link and also that the detention order was passed
almost after about four months from the date of proposal.
Both these factors, thus, render the detention order as
vitiated and as such, the same cannot be sustained. The
appellant had taken these grounds in his petition before
the writ court, however, these grounds seem to have
escaped the attention of the learned writ court.
17. Viewed thus, the order impugned passed by the writ court
is set aside and consequently, the Habeas Corpus Petition
moved by the appellant is allowed and the detention order
impugned therein passed by the detaining authority is
ordered to be quashed. The detenue is ordered to be
11 LPA No. 308/2024released forthwith from custody provided he is not required
in any other case(s). No order as to costs.
18. The LPA along with connected application(s) is, accordingly,
disposed of.
19.
(M A CHOWDHARY) (TASHI RABSTAN)
JUDGE CHIEF JUSTICE
JAMMU
03.03.2025
NARESH/SECY
Whether order is speaking: Yes
Whether order is reportable: Yes
Naresh Kumar
2025.03.03 14:49
I attest to the accuracy and
integrity of this document
