Mumtaz Ahmad Balgati vs Union Territory Of J&K And Another
2021 Latest Caselaw 26 j&K/2

                                                                      Sr. No. J2



             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR

                                              Pronounced on: 01.02.2021

                                                 WP (Crl) No. 8/2020


Mumtaz Ahmad Balgati                                             ...Petitioner..

                               Through :- Mr. Wajid Haseeb, Advocate.


                      v/s


Union Territory of J&K and another                            ...Respondent(s)..

                              Through :- Mr. Sajjad Ashraf, GA

Coram:      HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: :                                      (Through Virtual Mode from Jammu)


                                  JUDGMENT

1. Mumtaz Ahmad Balgati through his brother Manzoor Ahmad Balgati

has challenged his detention order No. 60-DMK/PSA of 2019 dated

25.11.2019, passed by respondent No.2. It is submitted that the detenue

was admitted to default bail in F.I.R No. 129/2019 but was not released

and was shifted to Central Jail, Srinagar for preventive detention. The

detention order is challenged on the grounds that there was no

justification to pass detention order against the said Mumtaz Ahmad

Balgati; that the grounds of detention are vague; that the detaining

authority has not applied mind of own but relied upon the police

dossier only; that the relevant material has not been furnished to the

petitioner thereby effecting his right to have effective representation

against his detention order; that the order of detention was passed in

English and the translated version of the order was not made available

in Kashmiri/Arabic language to the detenue who was having

knowledge of the above languages only; that the detenue was already

in custody at the time of passing of the detention order and no

compelling reason is given in the impugned order for detention of the

petitioner; that there is only one alleged activity mentioned in the

ground of detention and that the order of detention has been passed on

25.11.2019 but has been executed in the last week of December

without any justification.

2. The reply affidavit has been filed on behalf of the respondent No.2.

The respondent has justified the order of detention by submitting that

the order has been passed as per the provisions of the Public Safety

Act. It is submitted that the contents of warrants were read over and

explained to the detenue who also put his signatures on the same and

was also informed of his right to make representation against his

detention order. The order has been passed with complete independent

application of mind by the authority. The detenue is involved in

offence under Section 3 of the Explosive Substances Act and ULA (P)

Act at Police Station, Kupwara in FIR No. 129/2019. Indeed, the

prayer is for dismissal of the petition.

3. Heard learned counsel for the parties and perused the digital record

provided to the Court.

4. The words „preventive detention‟ speak for themselves the meaning.

The difference between the preventive detention and prosecution is

aptly observed in Haradhan Saha‟s case reported in (1975) 3 SCC 198:

"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 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. 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."

5. The order of detention is approved by the Government Order No.

Home/PB-V/195 of 2019 dated 28.11.2019. The Board constituted

under the Public Safety Act has approved the detention order vide

dated 01.01.2020. Consequently, the Government vide order No.

Home/PB-V/166 of 2020 dated 31.01.2020 confirmed the order of

detention dated 25.11.2019 for a period of six months in the first

instance. This period has been further extended by the Government

from time to time, the last order being Home/PB-V/1863 of 2020 dated

22.12.2020 for a further period of six months and the detenue has been

lodged in District Jail, Kathua.

6. The perusal of the record reveals that the dossier with regard to the

petitioner was prepared by Superintendent of Police, District Kupwara

with the finding that the activities of the petitioner pose a strong threat

to the security scenario. Respondent No.2 while passing the order of

detention has separately recorded the grounds of detention. As per the

grounds of detention the petitioner is a hardcore associate of the

militants and hell bent on challenging the security of the State by

indulging in terrorist activities and in case he is permitted to remain at

large he will continue to indulge in terrorist activities which will prove

detrimental to the security of the State. The grounds of detention

indeed referred to the registration of F.I.R No. 129/2019 (supra)

against the petitioner. Perusal of the file further reveals that the

petitioner has been provided seven leaves consisting of PSA warrant,

notice, grounds of detention, copy of dossier and copy of the F.I.R.

The order of detention of 25.11.2019 has been executed on 28.12.2019

in Central Jail, Srinagar. The execution of detention order reveals the

signature of the detenue-Mumtaz Ahmad Balgati. The receipt of

detention papers also records the signature of detenue. The receipt of

grounds of detention reveals that the detenue has been made aware of

the documents in Kashmiri/Urdu/English languages. However, the

communication no. Pros/Dos-26/2019/42015-20 dated 31.12.2019

from superintendent of Police to the Principal Secretary to the Home

department speaks of the providing of the translated copies of

detention order and grounds of detention to the detenue. The record file

does not reveal containing any such translated version of the

documents. The providing of the material was not mere formality but

adherence to the same was obligation from which the respondents

could not escape. Further, this communication reveals that the

documents have been explained to the detenue in Pahari and Urdu

languages. The same is contrary to the record as there is no such noting

in the report pertaining to the execution of the warrant of detention

order. There cannot be casual approach by the authorities even while

executing the detention order.

7. One of the grounds argued for quashment of detention order is that the

petitioner was served with the detention order on 28.12.2019 though it

was passed on 25.11.2019 by the respondent No.2 meaning thereby

that there was delay in execution of the detention order but without any

reasonable explanation for the same. It is evident that the petitioner

was already in custody by the time the warrant of detention was

executed on 28.12.2019. No explanation is forthcoming as to why the

detention order has been executed almost after one and a half month.

Once the petitioner was in custody, the detention order could have

been executed without any delay upon the detenue. It is not that the

detention order can be executed as per the convenience of the authority

but has to be executed at an earliest unless there are reasons which

delayed the execution of the detention order.

8. The detention order is required to be quashed on the findings given

above. The court need not go into other aspects of the case in the light

of the discussion made above on the key grounds of challenge to the

detention order.

9. In the light of the above, the detention order passed by respondent

No.2 cannot be upheld and is liable to be quashed. Accordingly, the

detention order in question is quashed. The petitioner Mumtaz Ahmad

Balgati be released forthwith if not required otherwise in any other

case.

(PUNEET GUPTA) JUDGE

Srinagar:

           01.02.2021
           Pawan Chopra

                                         Whether the order is speaking?     Yes/No
                                         Whether the order is reportable?   Yes/No
SHAMMI KUMAR
2021.02.01 16:47
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