Jammu & Kashmir High Court - Srinagar Bench
Ishfaq Amin Bhat vs Ut Of J&K & Others on 27 April, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)
Reserved on: 15.04.2021
Pronounced on:27 .04.2021
WP(Crl) No.161/2020
ISHFAQ AMIN BHAT ...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.30/DMP/PSA/20 dated 30.09.2020 (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.
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3) On the basis of communication of Senior Superintendent of
Police, Awantipora, issued vide his No.Con/PSA/2020/120-123 dated
25.09.2020, whereby some material including dossier and other
connected documents in respect of the petitioner were 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.183/2010 under Section 18 NDPS Act and FIR No.51/2020
under Section 8/20 of NDPS Act stand registered against him in Police
Station, Awantipora. Challan in both the cases, after allegations having
been proved, has been presented before the competent court of law.
There is reference of another FIR i.e. FIR No.131/2016 under Section
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147, 148, 149, 341 and 336 RPC, which also stands registered against
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the petitioner in Police Station, Awantipora, and upon investigation has
been challaned before the competent court of jurisdiction for trial.
5) It is on the basis of aforesaid activities of the petitioner and his
involvement in three FIRs as also his association with banned
organization Jamat-i-Islami, the detaining authority has arrived at
subjective satisfaction that keeping 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
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even after 28th of February, 2019, when Jamat-i-Islami
was declared as unlawful organization, the petitioner has
continued with 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 copies of FIRs
relied, referred to in the grounds of detention, have 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.67/2020 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
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of W.B, (1975) 3 SCC 198, it is submitted that an order of preventive
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detention may be made with or without prosecution and in anticipation
or after discharge or even acquittal and that the pendency of the
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
Farooq Ahmad, ASI of Police Station, Awantipora, and the detenue
was handed over to Superintendent Central Jail, Kot Bhalwal 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, Vol. 1(SC) 1.
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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
authority clearly oscillates between the activities of the detenue relating
to illicit trafficking of drugs and those having potential of disturbing
public order. Two FIRs, one registered in the year 2010 and another in
the year 2020, 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) With regard to the satisfaction of the detaining authority that the
allegations contained in FIR No.131/2016 under Section 147, 148, 149,
341 and 336 RPC do make out a case where it becomes imperative to
place the petitioner under preventive detention to prevent him from
acting in any manner prejudicial to public order, it is sufficient to notice
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that the incident for which FIR has been registered pertains to the year
2016 whereas the impugned order of detention has been passed on 30 th
of September, 2020. There is, thus, no proximate link between both
prejudicial 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
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.
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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 many judgments to hammer this
settled legal position.
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
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