Jammu & Kashmir High Court – Srinagar Bench
Sayar Ahmad Shah @ Sayar (Aged 26 vs Union Territory Of Jammu And Kashmir on 30 December, 2024
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No.286/2024
CM No.6654/2024
Reserved on : 19.12.2024
Pronounced on : 30.12.2024
Sayar Ahmad Shah @ Sayar (Aged 26
years) S/o Abdul Ahad Shah R/o Rathsuna
Tehsil Tral, District Pulwama, through his
father Abdul Ahad Shah S/o Ghulam Mohi-
ud-Din Shah R/o Rathsuna Tehsil Tral,
District Pulwama. ...Petitioner(s)/Appellants.
Through: Mr. M. Ayoub Bhat, Advocate.
Vs.
1. Union Territory of Jammu and Kashmir
through Principal Secretary, Home
Department, J&K Govt. Civil
Secretariat, Srinagar/ Jammu.
2. District Magistrate, Pulwama.
3. Senior Superintendent of Police,
Awantipora, Pulwama. ....Respondent(s)
Through: Mr. Faheem Nissar Shah, GA.
Ms. Maha Majeed, Assisting Counsel, vice
Mr. Mohsin Qadiri, Sr.AAG.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
J U D G M E N T
1. The present Letters Patent Appeal has been filed against the
judgment and order dated 14.10.2024 (hereinafter for short „the impugned
judgment) passed by the learned Single Judge in case titled Sayar Ahmad
Shah Alias Sayar being HCP No. 46/2024 whereby the Habeas Corpus
Petition, filed by the appellant herein, was dismissed.
2. Heard learned counsel for the parties and perused the judgment of
the learned Single Judge as also the photo copy of the detention records
LPA No.286/2024 1
produced by the respondents. Learned counsel for the appellant-detenu
has also filed his written submissions which are taken on record.
3. The impugned judgment is assailed by the appellant/detenu on the
grounds that the same has been passed in violation of constitutional
mandate guaranteeing fundamental right of liberty and freedom; that the
allegations leveled against the detenue in the grounds of detention are
vague inasmuch as full details of the persons with whom the detenu was
alleged to be associated and providing logistic support have not been
provided and that the said persons were killed by the security forces
before passing of the detention order; that the detenue has been arrested in
FIR No.46/2020 and after a gap of four years the detention order has been
passed which is not permissible in law; that the translated copies of the
materials relied upon by the detaining authority for detaining the detenu
have not been furnished to the detenu; and that the order of rejection
rejecting the representation of the detenu has not been conveyed to the
detenu.
4. Learned counsel appearing for respondents, vehemently, resist the
contentions raised by the learned counsel for the appellant. Learned
counsel contended that the impugned judgment does not suffer from any
legal infirmity and the detention order has been passed without any
malice, inasmuch as all the safeguards provided under the Constitution of
India have been followed, while ordering his detention, as such, challenge
thrown to the impugned judgment is not sustainable, hence on this score
only the instant appeal merits dismissal. It is further contended that the
appellant-detenue has been detained with a view to prevent him from
indulging in the activities which are prejudicial to the security of the
State.
5. The main ground of challenge to the impugned judgment is that the
conclusion arrived at by the learned Single Judge that the allegations
made in the grounds of detention are neither vague nor lack in material
particulars is not correct as the grounds of detention did not disclose the
date of death of the brother of the detenu-appellant, namely, Asif Ahmad
Sheikh. But while going through the grounds of detention, it is
LPA No.286/2024 2
specifically mentioned that detenu was in touch with his terrorist brother,
namely, Imtiyaz Ahmad Shah of banned terrorist organization AGUH.
The further plea of the learned counsel for the appellant-detenu is
that said Imtiyaz Ahmad Shah has died on 07.04.2021, therefore, there
was no occasion for him to provide him the logistic support and passing
of classified information with regard to the movement of security forces/
police in the area. The learned counsel for the appellant while taking such
a plea has lost sight of the fact that the impugned detention order came to
be passed against the detenu on the basis of FIR No.46/2020 U/Ss 18, 39
ULA (P) Act lodged in the year 2020 when his brother Imtiyaz Ahmad
Shah was alive.
Perusal of the grounds of detention further reveal that appellant-
detenu was continuously extending support to the terrorists of banned
terrorist organization Jash-e-Mohammad and the said allegation does not
contain any vagueness in any manner whatsoever, as such, it can‟t be said
that the allegations made in the grounds of detention are vague or lacking
in material particulars.
It is apt to mention here that grounds of detention are definite,
proximate and free from any ambiguity. Detenu has been informed with
sufficient clarity what actually weighed with Detaining Authority while
passing the order of detention. Detaining Authority has narrated all the
facts and figures that made it to exercise its powers under Section 8 of the
J&K Public Safety Act, 1978, and record subjective satisfaction that
detenu was required to be placed under preventive detention in order to
prevent him from acting in any manner prejudicial to the security of the
State.
In such circumstances, it would suffice to say that there had been
material before detaining authority to come to the conclusion and hence, it
cannot be said that subjective satisfaction of detaining authority was
wrongly arrived at or grounds of detention are self-contradictory or vague.
The role of detenu has been specifically described in the grounds of
detention.
Even otherwise it is settled position of law that this Court in the
proceedings under Article 226 of the Constitution has limited scope to
LPA No.286/2024 3
scrutinize whether detention order has been passed on the material placed
before it, it cannot go further and examine sufficiency of material. Our
this view is fortified by the judgment delivered by the Hon‟ble Supreme
Court in State of Gujarat v. Adam Kasam Bhaya : (1981) 4 SCC 216. This
Court does not sit in appeal over the decision of the detaining authority
and cannot substitute its own opinion over that of the detaining authority
when grounds of detention are precise, pertinent, proximate and relevant
as has been held in State of Punjab v. Sukhpal Singh : (1990) 1 SCC 35.
This Court can only examine grounds disclosed by the Government
in order to see whether they are relevant to the object which the
legislation has in view, that is, to prevent detenu from engaging in
activities prejudicial to security of the State or maintenance of public
order. This view is supported by the judgment of the Hon‟ble Supreme
Court in Union of India v. Arvind Shergill : (2000) 7 SCC 601.
It would be pertinent to mention here that the Supreme Court, in
several decisions, has held that even one prejudicial act can be treated as
sufficient for forming requisite satisfaction for detaining a person. The
power of preventive detention is a precautionary power exercised in
reasonable anticipation. It may or may not relate to an offence. It is not a
parallel proceeding. It does not overlap with prosecution even if it relies
on certain facts for which prosecution may be launched or may have been
launched. An order of preventive detention may be, made before or during
prosecution. An order of preventive detention may be made with or
without prosecution and in anticipation or after discharge or even
acquittal. The pendency of prosecution is no bar to an order of preventive
detention and an order of preventive detention is also not a bar to
prosecution. Discharge or acquittal of a person will not preclude detaining
authority from issuing a detention order. In this regard the Constitution
Bench of the Supreme Court in case titled Haradhan Saha v. State of W.B.
reported at (1975) 3 SCC 198, while considering various facets
concerning preventive detention, has observed thus:
“32. The power of preventive detention is qualitatively different
from punitive detention. The power of preventive detention is a
precautionary power exercised in reasonable anticipation. It
may or may not relate to an offence. It is not a parallelLPA No.286/2024 4
proceeding. It does not overlap with prosecution even if it relies
on certain facts for which prosecution may be launched or may
have been launched. An order of preventive detention may be,
made before or during prosecution. An order of preventive
detention may be made with or without prosecution and in
anticipation or after discharge or even acquittal. The pendency
of prosecution is no bar to an order of preventive detention. An
order of preventive detention is also not a bar to prosecution.
33. Article 14 is inapplicable because preventive detention and
prosecution are not synonymous. The purposes are different.
The authorities are different. The nature of proceedings is
different. In a prosecution an accused is sought to be punished
for a past act. In preventive detention, the past act is merely the
material for inference about the future course of probable
conduct on the part of the detenu.
34. The recent decisions of this Court on this subject are many.
The decisions in Borjahan Gorey v. State of W.B., Ashim Kumar
Ray v. State of W.B.; Abdul Aziz v. District Magistrate,
Burdwan and Debu Mahato v. State of W.B. correctly lay down
the principles to be followed as to whether a detention order is
valid or not. The decision in Biram Chand v. State of U. P.,
(1974) 4 SCC 573, which is a Division Bench decision of two
learned Judges is contrary to the other Bench decisions
consisting in each case of three learned Judges. The principles
which can be broadly stated are these. First, merely because a
detenu is liable to be tried in a criminal court for the
commission of a criminal offence or to be proceeded against for
preventing him from committing offences dealt with in Chapter
VIII of the Code of Criminal Procedure would not by itself
debar the Government from taking action for his detention
under the Act. Second, the fact that the Police arrests a person
and later on enlarges him on bail and initiates steps to
prosecute him under the Code of Criminal Procedure and even
lodges a first information report may be no bar against the
District Magistrate issuing an order under the preventive
detention. Third, where the concerned person is actually in jail
custody at the time when an order of detention is passed against
him and is not likely to be released for a fair length of time, it
may be possible to contend that there could be no satisfaction
on the part of the detaining authority as to the likelihood of
such a person indulging in activities which would jeopardise the
security of the State or the public order. Fourth, the mere
circumstance that a detention order is passed during the
pendency of the prosecution will not violate the order. Fifth, the
order of detention is a precautionary measure. It is based on a
reasonable prognosis of the future behaviour of a person based
on his past conduct in the light of the surrounding
circumstances.”
LPA No.286/2024 5
The Supreme Court in case of Debu Mahato v. State of W.B. :
(1974) 4 SCC 135, has said that while ordinarily-speaking one act may
not be sufficient to form requisite satisfaction, there is no such invariable
rule and that in a given case “one act may suffice”. That was a case of
wagon-breaking and given the nature of the Act, it was held therein that
“one act is sufficient”. The same principle was reiterated in the case of
Anil Dely v. State of W.B. : (1974) 4 SCC 514. It was only a case of theft
of railway signal material. Here too “one act was held to be sufficient”.
Similarly, in Israil S K v. District Magistrate of West Dinajpur : (1975) 3
SCC 292 and Dharua Kanu v. State of W.B. : (1975) 3 SCC 527, single
act of theft of telegraph copper wires in huge quantity and removal of
railway fish-plates respectively, was held sufficient to sustain the order of
detention. In Saraswathi Seshagiri v. State of Kerala : (1982) 2 SCC 310,
a case arising under a single act, viz. attempt to export a huge amount of
Indian currency was held sufficient. In short, the principle appears to be
this: “Though ordinarily one act may not be held sufficient to sustain an
order of detention, one act may sustain an order of detention if the act is
of such a nature as to indicate that it is an organised act or a manifestation
of organised activity.” The gravity and nature of the act is also relevant.
The test is whether the act is such that it gives rise to an inference that the
person would continue to indulge in similar prejudicial activity. That is
the reason why single acts of wagon-breaking, theft of signal material,
theft of telegraph copper wires in huge quantity and removal of railway
fish-plates were held sufficient by the Supreme Court. Similarly, where
the person tried to export huge amount of Indian currency to a foreign
country in a planned and premeditated manner, as in the present case
detenu has been apprehended with arms and ammunition, it was held that
such single act warrants an inference that he will repeat his activity in
future and, therefore, his detention is necessary to prevent him from
indulging in such prejudicial activity.
Therefore, there is no occasion for the appellant to plead that the
allegations leveled against him in the grounds of detention are vague or
are lacking material particulars, therefore, the ground urged in this regard
LPA No.286/2024 6
is rejected and the finding returned by the learned Single Judge with
regard to this aspect of the matter is upheld.
6. In so far as the plea regarding passing of the detention order after a
gap of four years after lodging the FIR against the appellant-detenu is
concerned, the perusal of the grounds of detention reveals that the
petitioner was booked in FIR No.46/2020 for offence punishable under
Sections 18, 39 ULA(P) Act registered with Police Station Tral. Perusal
of the grounds of detention further reveal that after the FIR was lodged, in
order to prevent him from indulging in anti-national activities, preventive
measures in terms of Sections 107 and 151 of CrPC were taken against
the appellant-detenue on 18.10.2021, 21.12.2021, 20.07.2023 and
09.11.2023. But despite of taking the said preventive measures against the
appellant-detenu he did not stop to indulge in anti-national activities,
therefore, it became imperative upon the detaining authority to detain the
detenu under the preventive detention.
In this regard the the Hon‟ble Supreme Court in Haradhan Saha v.
State of W.B (supra) has held that “An order of preventive detention may
be, made before or during prosecution. An order of preventive detention
may be made with or without prosecution and in anticipation or after
discharge or even acquittal. The pendency of prosecution is no bar to an
order of preventive detention. An order of preventive detention is also not
a bar to prosecution.
In view of the above, the contention of the learned counsel for the
appellant that the detention order was passed after a gap of four years
after lodging of the FIR, does not sustain the test of law and is,
accordingly, rejected.
7. The next contention of the learned counsel for the appellant is that
the translated copies of the materials relied upon by the detaining
authority for detaining the detenue have not been furnished to the detenu
and that order rejecting the representation of the detenu has not been
conveyed to the detenu. While going through the finding returned by the
learned Single on this issue, it has been held as under:
LPA No.286/2024 7
“6. So far as the first ground is concerned, if we have a look at
the detention record, the petitioner has been provided 25
leaves, which include detention order (01leaf), notice of
detention (01) leaf, grounds of detention (02 leaves), dossier of
detention (04 leaves) and copies of FIR, statements of witnesses
and other related documents (17 leaves). In the execution report
and the receipt of grounds of detention that bears signature of
the petitioner, it is further recorded that the petitioner has been
explained the contents of the aforesaid documents in Urdu and
Kashmiri language. The affidavit of the executing official in
support of the aforesaid assertion is also available in the
detention record. Thus, the contention of the petitioner that he
has not been furnished whole of the material record forming
basis of the grounds of detention and that he has not been
provided translated vrsion thereof is without any merit.
……….
8. The petitioner is stated to have made a representation to the
detaining authority through his father. A copy of representation
dated 10.02.2024 has been placed on record. A perusal of the
detention record reveals that the said representation has been
considered by the District Magistrate, Pulwama, on 13.02.2024,
whreafter the same has been rejected. The information elating
to rejection of representation of the petitioner has been
conveyed to him in terms of communication No.
DCP/PA/24/3130-34 dated 13.02.2024. Thus, the ground urged
by the petitioner is without any substance.”
8. While going through the detention records as also the findings
returned by the learned Single Judge on the aforesaid issue, there is not an
iota of doubt that the materials relied upon while passing the impugned
detention order have been provided and explained to the detenu in Urdu
and Kashmiri language and the order rejecting the representation of the
appellant-detenu has been conveyed to him vide communication dated
13.02.2004. Therefore, we have no hesitation in holding that the finding
returned by the learned Single Judge on the issue is legally and factually
correct.
9. Keeping in view the aforesaid facts and circumstances of the case,
we find no error apparent on the face of the judgment dated 14.20.2024
passed by the learned Single Judge in HCP No. 46/2024 titled Sayar
Ahmad Shah Alias Sayar v. UT of J&K and others, as such, the same is
upheld and the appeal is dismissed.
10. The appeal is, accordingly, dismissed.
LPA No.286/2024 8
11. Photo copy of the record produced by learned counsel for the
respondents is returned in the open court.
(RAJESH SEKHRI) (TASHI RABSTAN)
JUDGE CHIEF JUSTICE
Srinagar
30.12.2024
Abdul Qayoom, Secy.
Pronounced by me today on 30th of December, 2024 in terms of
Rule 138(4) of the Jammu and Kashmir High Court Rules, 1999.
(TASHI RABSTAN)
CHIEF JUSTICE
Abdul Qayoom Lone
I attest to the accuracy and
authenticity of this document
02.01.2025 12:36 LPA No.286/2024 9