Jammu & Kashmir High Court - Srinagar Bench
Umar Yousuf Naik vs State Of J&K And Others on 29 January, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)
LPA No. 216/2019
Reserved on: 28.12.2020
Pronounced on:29.01.2021
Umar Yousuf Naik ....... Appellant(s)
Through: Mr. M. A. Ganai, Advocate.
Versus
State of J&K and others ......Respondent(s)
Through: Mr. B. A. Dar, Sr. AAG.
CORAM: HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
Sanjeev Kumar-J
1. This intra Court appeal by one Umar Yousuf Naik ('the detenue')
through his father is directed against the order and judgment dated
14.08.2019 passed by the learned Single Judge of this Court in HCP No.
46/2019 [WP (Cr.) no. 46/2019] whereby the petition of the detenue for
quashment of his detention order issued by the District Magistrate Shopian
has been dismissed.
2. With a view to appreciating the grounds of challenge urged by the
learned counsel for the appellant (detenue), it is necessary to notice material
LPA No. 216/2019
background facts leading to the detention of the detenue under the J&K
Public Safety Act.
3. Consequent upon a dossier supplied by Senior Superintendent of
Police, Shopian, the District Magistrate Shopian, ( the detaining authority for
short), vide its order No. 155/DMS/PSA/2019 dated 06.02.2019 ("the
detention order"), ordered detention of the detenue under Section 8(a) of the
J&K PSA, 1978 with a view to preventing him from acting in any manner
prejudicial to the security of the State. The detention of the detenue was
ordered on the ground that the detenue was an over ground worker (OGW)
of banned terrorist organization known by the name of 'Hizbul Mujahideen'
and was providing logistic support to the terrorists carrying subversive
activities with the object to secede Union Territory of Jammu and Kashmir
from the Union of India. The details of the activities of the detenue, which
formed the basis of his detention order, have been elaborated in the grounds
of detention claimed to have been served by respondents on the detenue. The
detenue, as is evident from the reading of the grounds of detention, was
involved in as many as five different FIRs registered in Police Station
Zainapora for various offences including the offences under Unlawful
Activities (Prevention) Act. All the FIRs, to which reference has been made
in the grounds of detention, pertain to the year 2018. It is also stated in the
grounds of detention that the detenue has been arrested in case FIR No. 65 of
2019 under Section 302, 307, 392 RPC, 7/27 Arms Act and 16 ULA (P) Act
and during the course of interrogation has divulged the way he was
undertaking various kinds of subversive activities aimed at threatening the
peace and security of the State. The detaining authority, relying upon the
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material supplied by Senior Superintendent of Police Shopian as also his
opinion based on inputs from various field formations, arrived at the
satisfaction that the activities, the detenue was indulging in, were highly
prejudicial to the security of the State and, therefore, in order to curb his
activities, the detention under Section 8 of the J&K Public Safety Act, 1978
was imperative. The father of the detenue, feeling aggrieved of the
preventive detention of his son, filed the petition in the nature of Habeas
Corpus before this Court. The detention of the detenue was assailed inter
alia on the following grounds:-
(1) That at the time of passing the order of detention the detenue was
already is custody and had not even applied for bail and, therefore,
it was necessary for the detaining authority to indicate the
compelling circumstances for taking the detenue in preventive
detention;
(2) That the detenue was never provided the relevant material relied
upon by the detaining authority to derive his subjective satisfaction
with regard to the necessity of putting the detenue under preventive
detention;
(3) That the detaining authority has not applied its mind and prepared
the grounds of detention by reproducing the dossier supplied by the
Senior Superintendent of Police in verbatim.
4. On being put on notice, the respondents appeared before the Writ
Court and filed their reply affidavit on behalf of the detaining authority. The
respondents also produced the detention records before the Writ Court to
substantiate the pleas taken in the reply affidavit. The detention of the
LPA No. 216/2019
detenue was sought to be justified on the grounds enumerated in detail in the
grounds of detention served upon the detenue. Involvement of the detenue in
as many as five different FIRs and the detail of the activities narrated by
Senior Superintendent of Police in the dossier was cited as the relevant
material on the basis of which the detaining authority arrived at the
subjective satisfaction that remaining at large of the detenue was highly
prejudicial to the security of the State.
5. The Writ Court after considering the rival contentions and having
gone through the detention record came to the conclusion that there was no
legal infirmity in the detention of the detenue and dismissed the petition
primarily on the ground that material against the detenue detailed in the
grounds of detention was sufficient for the detaining authority to arrive at
satisfaction that it was necessary to put the detenue under preventive
detention so as to restrain him from acting in any manner prejudicial to the
security of the State. The Writ Court, on the basis of detention record, also
came to the conclusion that all safeguards viz. furnishing of grounds of
detention alongwith requisite material and informing the detenue of his right
to make representation against his detention had been scrupulously followed
by the detaining authority and, therefore, there was no reason to interfere
with the impugned detention order. The Writ Court did not advert to the
other grounds of challenge urged on behalf of the petitioner holding that if a
detention order was 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 legally unsustainable. Placing reliance on the judgment of Hon'ble the
Supreme Court in Goutam Jain v. Union of India and another, 2017 (1)
LPA No. 216/2019
JKLT (1) SC 1, the Writ Court declined to go into the star ground of
challenge urged on behalf of the detenue that the detention order was
vitiated, for, the detaining authority despite being aware that the detenue was
already in custody did not indicate any compelling reasons to put the
detenue under preventive detention. This is how the Writ Court did not find
any merit in the petition and, accordingly, dismissed the same. Aggrieved,
the appellant is before us in this appeal.
6. The impugned order of the Writ Court is assailed before us primarily
on the ground that the Writ Court erred in upholding the detention of the
detenue, in that, the detaining authority despite being well aware that the
detenue at the time of detention was already in custody of the State in
connection with commission of various serious offences including Section
302 RPC and had not approached any Court for bail, yet ordered the
detention that too without disclosing compelling reasons for doing so.
7. Mr. Mushtaq Ganai, learned counsel for the detenue vehemently
contends that non-consideration of this vital ground of challenge to the
detention urged before the Writ Court, the judgment impugned is vitiated in
law. Referring to the grounds of detention, it is argued that the detaining
authority, though well aware that the detenue was under arrest in FIR No.
65/2018 for very serious non-bailable offences including Section 302 RPC
and Section 16 ULA(P) Act, yet thought of placing the detenue under
preventive detention without even spelling out the compelling reasons to do
so. Learned counsel further urges that reliance by the Writ Court on the
judgment of the Supreme Court in the case of Goutam Jain (supra) was
totally misplaced. He argues that the ground of challenge, which was not
LPA No. 216/2019
adverted to or considered by the Writ Court on the strength of judgment of
Goutam Jain, was not a ground of detention independent of other grounds
of detention with reference to which the judgment in Goutam Jain was
rendered by the Supreme Court.
8. Having heard learned counsel for the parties and perused the record,
we are of the considered opinion that the view taken by the Writ Court is not
a correct view in the eye of law. Admittedly, on the date of detention the
detenue was already in jail in FIR No. 65/2018 for very serious non-bailable
offences. The detenue had not even applied for bail before any competent
Court of law. And it is because of this reason perhaps the detaining authority
did not voiced his apprehension of likelihood of the detenue being released
on bail. That being the situation, it was incumbent on the detaining authority
to indicate compelling reasons for resorting to provisions of Section 8(a) of
the J&K Public Safety Act, 1978 and place the detenue under preventive
detention. If the idea of issuing the detention order was to prevent the
detenue from acting in any manner prejudicial to the security of the State,
that objective stood already achieved with the arrest of the detenue in
connection with commission of substantive offences. In these circumstances
the detaining authority could not have absolved itself of the responsibility to,
at least, indicate the compelling circumstances for taking such decision. In
that view of the matter, the detention of the detenue, when he was already in
custody cannot be said to have been made because of any undisclosed
compelling reasons, and, therefore, cannot be justified in view of the law
laid down by Supreme Court in Surya Prakash Sharma vs. State of UP
and ors, 1994 Supp (3) SCC 195.
LPA No. 216/2019
9. When the principles laid down in the aforesaid case are applied to the
facts of the instant case, there is no escape from the conclusion that the
impugned order of detention cannot be sustained and so is the fate of the
order impugned in this appeal.
10. With regard to the reliance placed by the Writ Court on the judgment
of Goutam Jain (supra), a Division Bench of this Court has already delved
deep in the issue in the case of Nissar Ahmad Qazi v. State of Jammu and
Kashmir (LPAHC No. 06/2019 decided on 27.11.2020). The Court has
already drawn a distinction between the grounds of detention on the basis of
which citizen is detained under the preventive detention law and the grounds
of challenge urged by the detenue to assail his 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 severable and
independent of each other. In these circumstances, the Section provides that
order of detention shall not be deemed invalid or inoperative merely because
one or some of the ground is or are vague, non-existent, not relevant, not
connected or not proximately connected with such person or invalid for any
other reason whatsoever etc. etc.
11. Viewed thus, in the light of the distinction drawn in the case of Nissar
Ahmad Qazi (supra), it is seen that in the instant case the subjective
satisfaction is fundamentally based on one ground i.e. the activities the
detenue has been persistently involved in 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
involvement of the detenue in FIRs etc. only constitute subsidiary facts
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giving rise to a substantive ground on the basis of which the detaining
authority has arrived at a satisfaction that the detention of the detenue under
preventive law is necessary and imperative.
12. The plea of the appellant that the subjective satisfaction of the
detaining authority, which is sine quo non, for ordering detention under
preventive 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 detention and vitiates it
abinitio. In that view of the matter, we reiterate our view that judgment in
Goutam Jain (supra) is not attracted in the case in hand. The order of
detention 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 accept this appeal, set aside the order of the
Writ Court and quash the impugned order of detention of the detenue.
14. As a result, the respondents are directed to release the detenue
forthwith from the preventive custody if not required in any other case.
( Rajnesh Oswal) (Sanjeev Kumar)
Judge Judge
SRINAGAR
29.01.2021
Anil Raina, Addl Reg./Secy
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
ANIL RAINA
2021.02.01 13:00
I attest to the accuracy and
integrity of this document
