Feroz Ahmad Parray vs Ut Of J&K & Others
2021 Latest Caselaw 487 j&K/2

                                IN THE HIGH COURT OF JAMMU AND KASHMIR
                                              AT SRINAGAR

                                             (THROUGH VIRTUAL MODE)

                                                                       Reserved on: 19.04.2021
                                                                     Pronounced on:27 .04.2021

                                                 WP(Crl) No.198/2020

                        FEROZ AHMAD PARRAY                                   ...PETITIONER(S)

                                            Through: - Mr. Mohammad Ayoub Bhat, Advocate.

                        Vs.

                        UT OF J&K & OTHERS                                 ...RESPONDENT(S)

                                            Through: - Mr. Mir Suhail, AAG.

                        CORAM:       HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.


                                                         JUDGMENT

1) Petitioner, through his wife, has assailed his detention ordered by

District Magistrate, Pulwama (the detaining authority) vide his order

No.29/DMP/PSA/20 dated 25.09.2020 (the impugned order). In terms

of the impugned order aforesaid, the petitioner has been placed under

preventive detention with a view to preventing him from acting in any

manner prejudicial to the maintenance of public order on the grounds

detailed in the grounds of detention served upon the petitioner.

2) Before adverting to the grounds of challenge taken by the

petitioner to assail the impugned order, it would be appropriate to

briefly state few background facts.

MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

3) On the basis of communication of Senior Superintendent of

Police, Awantipora, issued vide his No.Con/PSA/2020/73-96 dated

17.09.2020, whereby some material including dossier and other

connected documents in respect of the petitioner was submitted to the

detaining authority, the detaining authority arrived at satisfaction that

with a view to prevent the petitioner from acting in any manner

prejudicial to the maintenance of public order, it was necessary to

detain him under Section 8 of the J&K Public Safety act (hereinafter

"the Act" for short) and, accordingly, the impugned order of detention

was passed. The grounds of detention, claimed to have been served

upon the petitioner, indicate activities of the petitioners in some detail.

As per the grounds of detention, it is alleged that the petitioner is

affiliated with Jamat-i-Islami Jammu & Kashmir, an organization

declared unlawful by the Ministry of Home Affairs, Government of

India, under sub-section (1) and (3) of Section 3 of the Unlawful

Activities (Prevention) Act, by virtue of notification No.S.O.1069 (E)

dated 28.02.2019.

4) It is also claimed that the petitioner is involved in illicit

trafficking of drugs and psychotropic substances and, in this regard,

FIR No.80/2011 under Section 27 of NDPS Act stand registered

against him in Police Station, Awantipora. Challan in the case, after

allegations having been proved, has been presented before the

competent court of law.

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5) It is on the basis of aforesaid activities of the petitioner and his

involvement in the aforesaid FIR as also his association with banned

organization Jamat-i-Islami, the detaining authority has arrived at

subjective satisfaction that remaining at large of the petitioner is

detrimental to the maintenance of public order and, therefore, his

detention under the Act necessitated.

6) The petitioner has challenged the impugned order of detention on

several grounds. The grounds of challenged which were pressed during

the course of arguments by learned counsel appearing for the petitioner

are as under:

(I) That the subjective satisfaction derived by the detaining

authority is vitiated for the reason that the detaining

authority has clubbed two different types of activities

allegedly attributable to the petitioner and it is not clear as

to whether the impugned order has been issued to prevent

the petitioner from indulging in illicit trafficking of drugs

and psychotropic substances or it is for maintenance of

public order;

(II) That the requisite material relied upon by the detaining

authority to derive his satisfaction has not been served

upon the petitioner. There is no reference to any of the

activities of the petitioner which could demonstrate that

even after 28th of February, 2019, when Jamat-i-Islami

MOHAMMAD ALTAF BHAT was declared as unlawful organization, the petitioner has 2021.04.27 16:08 I attest to the accuracy and integrity of this document

continued his affiliation with the aforesaid organization

nor the petitioner has been provided with any material

which would indicate that the petitioner was ever

associated with the aforesaid organization or was its

member at any point of time. Even the copy of FIR relied,

referred to in the grounds of detention, has not been

supplied to the petitioner;

(III) That the impugned order suffers from total non-application

of mind, in that, the detaining authority, while relying

upon FIR No.80/2011 in the grounds of detention, has not

shown any awareness of the fact that the petitioner stood

enlarged on bail in the aforesaid FIR;

(IV) That the grounds of detention are totally vague, indefinite,

uncertain and ambiguous and, therefore, vitiate the

impugned order of detention.

7) On being put on notice, the detaining authority has filed a

detailed reply affidavit to justify the impugned order of detention. It is

submitted that the order of detention is based upon subjective

satisfaction of the detaining authority and the reasons that prevailed

with it cannot be gone into by the Court. Placing strong reliance on the

judgment of the Supreme Court in the case of Hardhan Saha vs. State

of W.B, (1975) 3 SCC 198, it is submitted that an order of preventive

detention may be made with or without prosecution and in anticipation

MOHAMMAD ALTAF BHAT or after discharge or even acquittal and that the pendency of the 2021.04.27 16:08 I attest to the accuracy and integrity of this document

prosecution is no bar to pass an order of preventive detention. It is also

contended that where individual liberty comes into conflict with an

interest of security of the State or public order, then the liberty of the

individual must give way to the larger interest of the nation. Reliance is

placed on the judgment of the Supreme Court in the case of Secretary

to Government, Public (Law and Order) and another vs. Nabila and

another, (2015) 12 SCC 127.

8) The respondents have also countered the plea of the petitioner

that he was not served material relied upon in the grounds of detention.

It is submitted that the grounds of detention as well as entire material

relied upon by the detaining authority was furnished to the petitioner

within the statutory period when the warrant was executed by one Syed

Jaffar, SI of Police Station, Awantipora, and the detenue was handed

over to Superintendent Central Jail, Kot Balwal for lodgment. Lastly it

is urged that in view of the settled legal position that if an order of

detention is issued on more than one ground independent of each other,

the detention order will survive even if one of the grounds is found to

be unfounded or legally unsustainable. Reliance is placed on the

judgment of the Supreme Court in the case of Gautam Jain vs. Union of

India and anr. 2017 (1) Jammu Kashmir Law Times (SC) 1.

9) Having heard learned counsel for the parties and perused the

record, I am of the considered view that the order of detention does not

survive the judicial scrutiny for more than one reason. From the

grounds of detention, it transpires that the opinion of the detaining MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

authority clearly oscillates between the activities of the detenue relating

to illicit trafficking of drugs and those having potential of disturbing

public order. FIR No.80/2011, registered in the year 2011, pertain to

the offences under NDPS Act and, therefore, if the petitioner was to be

detained with a view to preventing him from indulging in illicit

trafficking of drugs, there is a separate legislation in place i.e. the

Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988, which provides for preventive

detention in such matters. Admittedly, the detaining authority has not

decided to proceed under the aforesaid Act and may be it did not find

sufficient material to derive subjective satisfaction that the activities of

the petitioner are such that unless he is placed under preventive

detention, it would not be possible to deter him from indulging in the

activities of illicit drug trafficking.

10) It is sufficient to notice that the incident for which FIR

No.80/2011 has been registered pertains to the year 2011 whereas the

impugned order of detention has been passed on 25th of September,

2020. There is, thus, no proximate and live link between the activities

of the petitioner and the object of detention. Absent the live and

proximate link between the two, it cannot be said that the detaining

authority has derived its subjective satisfaction on the basis of any

relevant material placed before it.

11) That apart, in the grounds of detention there is a specific mention

that preventive measures taken against the petitioner in terms of MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

Section 107 read with section 151 of Cr. P.C could not succeed to deter

the petitioner from acting in any manner prejudicial to the maintenance

of public order. As is rightly contended by learned counsel for the

petitioner, neither any detail of any proceedings under Section 107 read

with section 151 of Cr. P.C has been given in the grounds of detention

nor copy thereof has been provided to the petitioner. As a matter of

fact, no date of occurrence for which proceedings under Section 107

read with section 151 of Cr. P.C were initiated, has been indicated. This

makes the grounds of detention vague, uncertain and indefinite. In the

absence of requisite and definite material having been supplied to the

petitioner, it cannot be said that the petitioner has been given an

opportunity to make an effective representation against his detention,

which is a constitutional right of the person detained under preventive

detention.

12) Both sides have relied upon several judgments to make good

their points. Suffice it to say that the legal position is well settled. The

detention order is vitiated if the requisite material relied upon is not

supplied to the detenue, in that, if affects the vital constitutional right of

the detenue to make an effective representation. Simply because a

communicated has been issued to the detenue informing him about his

right to make a representation is not sufficient. It is equally well settled

that the order of detention must have proximate and live link with the

activities of the detenue. The detention based on stale incidents is

vitiated in law. We do not require so many judgments to hammer this

MOHAMMAD ALTAF BHAT 2021.04.27 16:08 settled legal position.

I attest to the accuracy and integrity of this document

13) For the foregoing reason and without specifically dealing with

the judgments cited by the learned counsel for the petitioner, I find

substance in this petition and the same is, accordingly, is allowed. The

impugned order of detention is quashed. Direction is issued to the

respondents to release the detenue from the preventive custody

forthwith, provided he is not required in connection with any other

case.

(Sanjeev Kumar) Judge Srinagar 27.04.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:          Yes/No
                                           Whether the order is reportable:        Yes/No




MOHAMMAD ALTAF BHAT
2021.04.27 16:08
I attest to the accuracy and
integrity of this document