Nazir Ahmad Tantray vs State Of J&K And Another
2021 Latest Caselaw 57 j&K/2

                      HIGH COURT OF JAMMU AND KASHMIR
                               AT SRINAGAR
                                 (Through Video Conference)

                                                          Reserved on   23.12.2020
                                                          Pronounced on 05.02.2021


                                                           WP(Crl) No. 424/2019


Nazir Ahmad Tantray                                        ...Petitioner/Applicant(s)

                 Through :-      Mr. B. A. Tak, Advocate

                V/s
                  <




State of J&K and another
't
                                                                   .....Respondent (s)

                 Through :- Mr. Asif Maqbool, Dy. AG
Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                       (through Video Conference from residence in Jammu)

                                       JUDGMENT

1. Through the medium of this petition, filed by the brother of the

petitioner on behalf of the petitioner, the petitioner has questioned order of detention

bearing No. 23/DMB/PSA/2019 dated 06.08.2019 issued by the District Magistrate,

Baramulla, respondent No. 2 herein ,by virtue of which the petitioner has been

detained in preventive detention under the Jammu and Kashmir Public Safety Act,

1978 (for short the Act) in order to prevent him from acting in any manner

prejudicial to the security of the State (now Union Territory).

2. The order of detention has been assailed by the petitioner on following

grounds:

i) the detaining authority has not complied with the statutory as well as

procedural safeguards as provided under 22(5) of the Constitution of India while

passing the detention order

ii) the material relied upon by the detaining authority while passing the

detention order has not been furnished to the petitioner.

iii) the grounds on which the petitioner has been detained are stale and have

no live link with the objective sought to be achieved under the Act.

3. The respondents have filed the counter affidavit, in which they have

categorically stated that the procedural as well as statutory safeguards enshrined

under Article 22(5) of the Constitution of India and section 13 of the PSA Act have

been complied with by the respondents while passing the detention order. They have

further stated that they have supplied all the requisite documents to the petitioner so

as to enable him to make an effective representation to the detaining authority and to

the Government. The respondents have also placed on record the execution receipt

and the detention order.

4. Mr. B. A. Tak, learned counsel for the petitioner has vehemently

reiterated the same grounds those have been taken in his petition. Learned counsel

for the petitioner submits that there is no subjective satisfaction derived by the

detaining authority that there is any necessity to detain the petitioner. He has further

argued that no material has been supplied to him so as to enable him to make an

effective representation to the detaining authority or the Government against his

preventive detention.

5. On the contrary, Asif Maqbool, learned counsel appearing for the

respondents has vehemently argued that all the documents have been served upon the

petitioner. Mr. Maqbool has also argued that the detention order is legal and all

procedural and statutory safeguards have been complied with while passing the order

of detention.

6. Heard and considered. I have perused the detention record meticulously.

7. A perusal of the grounds of detention record reveals that the detaining

authority has relied upon nine FIRs registered against the petitioner, out of which

seven FIRs were registered in the year, 2013, one in the year, 2014 and one FIR in

the year, 2016. Further, from the grounds of detention, it is evident that the petitioner

was earlier detained vide detention order No. 75/DMB/ARA/PSA/2016 dated

17.08.2016 but the said order was quashed by this Court on technical grounds and

now yet again the petitioner has been ordered to be detained on the basis of past

activities regarding which aforementioned FIRs were registered against the

petitioner. In the grounds of detention there is no allegation against the petitioner

that at any particular point of time after 2016, he has indulged in any unwarranted

activity that necessitated the detaining authority to pass the order of detention against

the petitioner. The only last activity regarding which FIR has been registered pertains

to the year, 2016 when FIR bearing No. 210/2016 for commission of offences under

sections 148, 149, 336, 307 and 427 RPC was registered against the petitioner on

13.08.2016.

8. Reliance is placed upon the decision of Apex Court in Syed Zakir

Hussain Malik vs. State of Maharashtra reported in (2012) 8 SCC 233. Relevant

paragraph Nos. 27 and 28 read as under:

"27. As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid

down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned.

28. It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenu, there is no need to go into the factual details." (Emphasis Supplied)

9. There is delay in passing the detention order and on this ground only,

order of detention is required to be quashed.

10. In view of the above, this petition is allowed. Detention order No.

23/DMB/PSA/2019 dated 06.08.2019 is quashed. Petitioner (detenue) be set free

from the preventive custody provided he is not required in any other case.

(RAJNESH OSWAL) JUDGE JAMMU 05.02.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No