Imtiyaz Ahmad Sheikh vs Ut Of J&K And Another
2021 Latest Caselaw 785 j&K/2

      THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                         AT SRINAGAR

                                             Reserved on: 01.07.2021
                                          Pronounced on: 26 .07.2021

                         WP(Crl) No.658/2019




Imtiyaz Ahmad Sheikh                               ...PETITIONER(S)

          Through: Mr. Wajid Haseeb, Advocate.

Vs.

UT of J&K and another                            ....RESPONDENT(S)

          Through: Ms. AsifaPadroo, AAG


CORAM:HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                               JUDGMENT

1) Imtiyaz Ahmad Sheikh ("the detenue") has filed this petition

through his father seeking to quash his detention ordered by the

District Magistrate, Baramulla ("the Detaining Authority") vide its

order No.09/DMB/PSA/2019 dated 04.07.2019.

2) By virtue of the impugned detention order passed by the

Detaining Authority in exercise of the powers conferred under Clause

(a) of Section 8 of the J&K Public Safety Act, 1978 (hereinafter "the

Act"), the petitioner has been taken in preventive custody with a view

to prevent him from acting in any manner prejudicial to the

maintenance of security of the State. The impugned detention has

been ordered on the basis of material supplied by the Senior

Superintendent of Police, Sopore vide his communication dated

03.05.2019. As per the grounds of detention, claimed to have been

served upon the detenue, the detenue after completion of graduation

went to Deoband (U.P.) to complete his Fazil degree. He also

completed his M.A. degree from Moulana Azad University,

Hyderabad. While working in Cotton Textile Company, Srinagar as

manager, the detenue came in contact with local militant, namely,

Reyaz Ahmad Dar resident of Naseerabad, Sopore in the month of

July, 2018 at Darul-ul-Uloom. The said militant motivated the detenue

to work with militants as over ground worker. On being motivated,

the detenue started working as OGW and after killing of Reyaz

Ahmad Dar during an encounter with the security forces, the detenue

developed his contacts with the militants of JeM/LeT and started

working with them. The detenue started providing food and shelter to

foreign and local militants of the aforesaid organizations. The detenue

also became a close associate of one foreign militant MosaBahi of

Pakistan, who was sheltered by the detenue in his house. There are

allegations against the detenue that he was instrumental in

strengthening militant activities in Sopore area.

3) Keeping in view the prejudicial activities of the detenue he was

apprehended by the police on 17.04.2019 along with other associates

during a naka checking at TakyabalCrossing, Sopore. On the

disclosure made by the detune, two UBGL Grenades were recovered

from MET, Sopore ground near PWD building. In this regard an FIR

No.29/2019 was registered in Police Station, Tarzoo. The petitioner

was arrested in the aforesaid FIR and while he was in custody and on

remand, it was comprehended that he could succeed in getting bail

from the Court and on being enlarged he will again indulge in

militancy related activities prejudicial to the security of State. The

Detaining Authority, thus, arrived at the satisfaction that it was

necessary to place the petitioner in preventive detention with a view to

preventing him from indulging in activities prejudicial to the security

of the State.

4) The impugned detention order is assailed by the petitionerinter

alia on the ground that while the petitioner was in custody of the

respondents having been arrested in case FIR No.29/2019 registered

in Police Station, Tarzoo,yet the detention order passed by the

Detaining Authority on 4th July, 2019 was executed and the petitioner

taken in preventive custody only on 27.11.2019. There is, thus,

unexplained delay of more than four months in execution of the

impugned detention order and placing of the petitioner in preventive

custody. Reliance in this regard is placed by the learned counsel for

the petitioner on a three-Judge Bench judgment of the Supreme Court

in KPM Basheer v. State of Karnataka and another, AIR 1992 SC

1353.

5) Learned counsel for the petitioner also urges that the impugned

order would not sustain for the reason that the relevant record viz.

dossier supplied by the police, copy of the FIR, site plan, seizure

memo, arrest memo, discloser memo and statements recorded under

Section 161 Cr.P.C. was not provided to the petitioner, which

prevented him from making an effective representation to the

Government against his preventive detention.

6) Having heard learned counsel for the parties and perused the

record, I am of the view that the impugned order of detention is not

sustainable in law and, therefore, deserves to be quashed.

7) Admittedly, pursuant to the material supplied by the Senior

Superintendent of Police, Sopore vide his communication dated

03.05.2019, the impugned detention order was passed by the

Detaining Authority on 04.07.2019. There is admittedly a delay of

two months in passing the order. Even if, we ignore this delay, the

respondents, in particular the Detaining Authority, has not explained

the delay of more than four months in executing the impugned order

of detention, more so, when the detenue was already in custody of the

respondents having been arrested in FIR No.29/2019. This

unexplained delay of more than four months vitiates the impugned

order of detention.

8) The observations of the Supreme Court made in paragraph

No.15 of the judgment in the case of Adishwar Jain v. Union of

India and another, (2006) 11 SCC 339 are noteworthy and are

reproduced hereunder: -

"15. Delay, as is well known, at both stages has to be explained. The court is required to consider the question having regard to the overall picture. We may notice that in Sk. Serajul v. State of West Bengal [(1975) 2 SCC 78], this Court opined:

"There was thus delay at both stages and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate, Burdwan recited in the order of detention. It would be reasonable to assume that if the District Magistrate of Burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities..."

9) From the judgment aforesaid, more particularly the

observations made in paragraph No.15, it is abundantly clear that the

delay at both stages has to be explained and unless this delay is

satisfactorily explained, it will throw considerable doubt on the

genuineness of the subjective satisfaction derived by the Detaining

Authority. Delay, whether it is in making the detention order or it

pertains to its execution, both are required to be satisfactorily

explained. To the similar effect is the legal position summed up in

para 11 of the judgment in KPM Basheer (supra). For ready

reference, para 11 of the judgment is reproduced hereunder: -

"11. Under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him. As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone we are not dealing with other contentions raised in the Memorandum of Appeal as well as in the writ petition."

10) In the instant case, though, very detailed reply affidavit has

been filed by the Detaining Authority, yet no attempt seems to have

been made to explain the delay of two months in passing the order of

detention and more than four months in executing the impugned order

of detention. The petitioner was all along in the custody of the

respondents. He was arrested in FIR No.29/2019 and was on remand

when the order of detention was made and had not been released on

bail or otherwise when the detention order was executed. The

judgments referred to herein above support the contention of the

learned counsel for the petitioner and render the order impugned bad

in the eye of law.

11) Since the ground on which the order of detention is rendered

unsustainable goes to the legitimacy of the subjective satisfaction of

the Detaining Authority and, therefore, this Court need not dwell and

consider other grounds of challenge urged by the petitioner.

12) For the foregoing reasons, this petition is allowed, the

impugned order of detention is quashed. The respondents are directed

to release the petitioner from preventive custody forthwith, provided

he is not required in any other case.

13) Detention record be returned back to the learned counsel for the

respondents.

(SanjeevKumar) Judge Srinagar 26.07.2021 "Vinod, PS"

               Whether the order is speaking:         Yes/No
               Whether the order is reportable:       Yes/No