Jammu & Kashmir High Court - Srinagar Bench
Hameed Ganie vs State Of J&K And Another on 29 January, 2021
h475
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
(through virtual mode)
LPA No.200/2019
CM No.5147/2019
Reserved on : 30.12.2020
Pronounced on :29.01.2021
Hameed Ganie ...Petitioner(s)
Through:- Mr. Z.A Shah, Sr. Advocate with
Mr. A. Hanan, Advocate
V/s
State of J&K and another ...Respondent(s)
Through:- Mr. B.A.Dar, Sr. AAG
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
Sanjeev Kumar-J
1. This appeal filed under Clause 12 of the Letters Patent is
directed against the judgment and order dated 22.07.2019 passed by the
learned Single Judge in WP(Crl) No.119/2019 [HCP No.119/2019] titled Dr.
Hameed Ganie v. State of J&K and another, whereby the writ petition of the
detenue for quashing his detention has been dismissed.
2. Briefly stated, the facts, as projected by the appellant in his writ
petition, which has been dismissed by the learned Single Judge in terms of
the impugned judgment, are that he came to be arrested on 22.02.2019 at 4
a.m. from his residence and sent to the Police Station, Humhama. He
remained in police custody for two days and thereafter shifted to Central
Jail, Srinagar. On 09.03.2019, the appellant was admitted to bail, but was re-
LPA No. 200/2019
arrested and escorted to Police Station, Humhama. He was immediately
shifted to District Jail, Kathua on 24.03.2019 and detained in terms of the
detention order No.DMB/PSA/14 of 2019 dated 20.03.2019 passed by the
District Magistrate, Budgam (hereinafter "the Detaining Authority"). Feeling
aggrieved of his detention, the appellant through his son Yasir filed a Habeas
Corpus Petition (HCP No.119/2019). The impugned order of detention was
challenged by the appellant, inter alia, on the ground that the order of
detention had been passed by the Detaining Authority in a mechanical
manner and without application of mind and, therefore, liable to be set aside.
It was also alleged that the relevant material relied upon in the grounds of
detention was never served upon the appellant so as to enable him to make
effective representation to the Government against his detention and,
therefore, the detention was violative of Article 22 of the Constitution and
liable to be set aside. It was also urged before the Writ Court that at the time
of passing of the detention order the appellant was already in police custody,
but the Detaining Authority did not show any awareness and passed the
detention order without proper application of mind.
3. The writ petition was resisted by the respondents vehemently.
In the counter affidavit filed by the Detaining Authority, it was pleaded that
the appellant was propagating the ideology of Jamat-e-Islami and had taken
over the rein of the organization as its "Ameer". The sole aim of the
appellant was to spread and deepen the ideology of the organization and
work towards bringing about secession of the State of Jammu & Kashmir
from Union of India and its consequent merger with Pakistan. It was stated
that for his activities, which were inimical to the security of the State, the
LPA No. 200/2019
appellant was booked in FIR No.328/2009 under Section 13 of ULA(P) Act
registered at Police Station, Shopian and FIR No.42/2019 under Sections 10,
11 and 13 of ULA(P) Act registered at Police Station, Budgam. Resultantly,
it was contended that since the activities of the detenue were highly
prejudicial to the security of the State and, therefore, it was imperative to
keep him under preventive detention, so as to prevent him from indulging in
his nefarious and anti-national activities. It was also pleaded before the Writ
Court by the Detaining Authority that all procedural safeguards, including
service of grounds of detention on the detenue, making the detenue aware of
his right to make representation to the Government, were strictly adhered to
and, therefore, there was no infirmity in the impugned order of detention.
4. The Writ Court, after considering the rival contentions and
going through the detention record, came to the conclusion that the
Detaining Authority derived subjective satisfaction on the basis of adequate
material before him for detaining the appellant and the Writ Court while
examining the material, which has been made the basis of subjective
satisfaction of the Detaining Authority, would not act as a Court of appeal
and find fault with the satisfaction on the ground that on the basis of the
material before the Detaining Authority another view was possible. The Writ
Court did not find any merit in the writ petition and accordingly, dismissed
the same. Dissatisfied and aggrieved by the judgment impugned, the
appellant is before us in this appeal.
5. The impugned judgment of the Writ Court is assailed by the
detenue, inter alia, on the grounds, which the appellant had urged before the
Writ Court.
LPA No. 200/2019
6. Having heard learned counsel for the parties and perused the
record, we are of the view that the judgment of the Writ Court is not
sustainable for more than one reason.
7. As is apparent from a bare reading of grounds of detention, the
appellant at the time of detention was found involved in two FIRs i.e. FIR
No.328/2009, which is more than a decade old and FIR No.42/2019, which
is recently registered in Police Station, Budgam. Interestingly, neither in the
dossier supplied by the Senior Superintendent of Police nor in the grounds of
detention, there is any whisper as to whether the appellant was ever arrested
in the aforesaid FIR/FIRs. There is no awareness shown by the Detaining
Authority with regard to the status of the appellant, who is accused in FIR
No.42/2009 under Sections 10, 11 & 13 of ULA (P) Act. The Detaining
Authority has also not indicated any reason as to why the substantive laws of
the State were not sufficient to deter the appellant from pursuing his
activities aimed at destabilizing the State and thereby threatening its
security.
8. No doubt, allegations against the appellant, as narrated in the
grounds of detention, may justify his detention under preventive custody, so
as to prevent him from acting in any manner prejudicial to the security of the
State, but the preventive detention law, which provides for depriving a
citizen of his liberty without putting him to trial is required to be adhered to
scrupulously. Once the appellant was booked in FIR No.42/2019, the State
was well within its powers to arrest him and keep him in police/judicial
custody. The appellant in his writ petition has categorically stated that he
was arrested on 22.02.2019 at 4 a.m. from his residence and sent to Police
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Station, Humhama where he remained in custody for two days and thereafter
sent to Central Jail, Srinagar. There is no reply to this averment made by the
appellant in paragraph No.2 of the writ petition. The Detaining Authority in
its affidavit is silent on the issue and has not explained as to in what
connection the appellant was arrested on 22.02.2019 and how on 09.03.2019
he came to be admitted to bail by the Tehsildar, Budgam. All these factual
assertions made by the writ petitioner in the writ petition ought to have been
replied or rebutted by the Detaining Authority in its reply affidavit. In that
view of the matter, learned counsel for the appellant is correct that the
impugned order was vitiated in law, as the same was passed without proper
application of mind by the Detaining Authority.
9. With regard to the reliance placed by the Writ Court on the
judgment of Gautam Jain v. Union of India, AIR 2017 SC 230, a Division
Bench of this Court has already dealt into the issue in the case of Nissar
Ahmed Qazi v. State of J&K and others, LPA(HC) No.06/2019 decided
on 27.11.2020. The Division Bench has also drawn distinction between the
grounds of detention on the basis of which a citizen is detained under
preventive detention laws and the grounds of challenge urged by such citizen
to assail the detention order. What is envisaged under Section 10A of the
J&K Public Safety Act is a situation where detention is ordered on two or
more grounds, which are separable and independent of each other. In these
circumstances, the Section provides that the order of detention was not to be
deemed invalid or inoperative merely because one or some of the grounds
is/are vague, non-existent, not relevant, not connected or not proximately
connected with such person or unfounded for any other reason whatsoever.
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10. Viewed thus, in light of the distinction drawn in the case of
Nissar Ahmed Qazi (supra), it is seen that in the instant case the subjective
satisfaction is fundamentally based on one ground i.e. activities, the
appellant has been persistently involved in for over a period of time, if not
prevented by putting him under preventive detention, would pose serious
threat to the security of the State. All other details including reference to the
involvement of the detenue in two FIRs only constitute subsidiary facts
giving rise to a ground on the basis of which the Detaining Authority has
arrived at a satisfaction that the detention of the appellant under preventive
law is imperative.
11. The plea of the appellant that the subjective satisfaction of the
Detaining Authority, which is sine qua non for ordering detention under
preventive detention law, is vitiated by non-application of mind, is, strictly
speaking, not a ground of detention but a specific ground of challenge raised
to assail the order of detention itself. Subjective satisfaction without taking
relevant material into consideration and non-application of mind by the
Detaining Authority are the grounds that go to the root of the detention and
vitiate it ab initio. In that view of the matter, we are of the considered view
that the judgment of Gautam Jain (supra) was not attracted in the case at
hand.
12. The order of detention, for the foregoing reasons, is clearly
vitiated by total non-application of mind by the Detaining Authority and it
should have been held so by the Writ Court.
13. In view of the above, we find merit in this appeal and the same
is, accordingly, accepted. The judgment and order of the Writ Court
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impugned in this appeal is set aside and the detention of the detenue is
quashed. As a result, the respondents are directed to release the detenue
forthwith, if not required in any other case.
(Rajnesh Oswal) (Sanjeev Kumar)
Judge Judge
Srinagar.
29.01.2021
Vinod.
Whether the order is speaking : Yes
Whether the order is reportable: Yes/No
VINOD KUMAR
2021.02.01 13:06
I attest to the accuracy and
integrity of this document
