Tahir Ahmad Bhat vs Ut Of J&K And Ors
2022 Latest Caselaw 641 j&K/2

        HIGH COURT OF JAMMU &KASHMIR AND LADAKH
                       AT SRINAGAR

                                        WP(Crl ) No. 237 /2021
                                        Reserved On : 17.05.2022
                                        Pronounced On: 20 .05.2022

Tahir Ahmad Bhat
                                                 ......Petitioner(s)

            Through: Mr.Shah Ashiq Hussain , Advocate
                              Versus
UT of J&K and Ors.
                                        .....Respondent(s)
            Through: Ms. Insha Rashid, GA

CORAM: HON'BLE MR JUSTICE M.A.CHOWDHARY,JUDGE

                                  JUDGEMENT

1. District Magistrate, Budgam (hereinafter called „Detaining

Authority‟) in exercise of powers under Section 8 of the Jammu &

Kashmir Public Safety Act, 1978, passed the detention Order No.

DMB/PSA/07/2021 dated 18.10.2021 (for short „impugned order‟), in

terms whereof the Petitioner namely Tahir Ahmad Bhat S/O Showkat

Ahmad Bhat R/O Sehri Mohalla Narbal District Budgam (for short

„detenue‟) was ordered to be detained and lodged in Central Jail,

Jammu. Petitioner is aggrieved of this order and seeks quashment

thereof on the grounds set out in writ petition on hand.

2. Counter Affidavit has been filed by respondents, vehemently resisting

the petition. Detention record has also been produced by counsel for

the respondents to substantiate the statements made in counter

affidavit.

3. I have heard learned counsel for parties and considered the matter.

WP (Crl) 237/2021 Page 1

4. Though a number of grounds have been taken by petitioner in writ

petition, yet one ground, which has been vehemently pressed by

learned counsel for petitioner is that detaining authority has made use

of case FIR No.51/2021 registered at P/S Magam, without mentioning

the fact that detenu has already been released on bail in the aforesaid

FIR, by court of competent jurisdiction, which reflects non-application

of mind on the part of detaining authority.

5. It may not be out of place to mention here that whether a person, who is

in jail, can be detained under preventive detention law has been a subject

matter of consideration before the Supreme Court very often. In

Dharmendra Suganchand Chelawat & Anr v. Union of India, AIR

1990 SC 1196, the Supreme Court while considering the same issue has

reconsidered its earlier judgments on the point in Rameshwar Shaw v.

District Magistrate, Burdwan, AIR 1964 SC 334; Masood Alam v.

Union of India, AIR 1973 SC 897; Dulal Roy v. District Magistrate,

Burdwan, AIR 1975 SC 1508; Alijan Mian v. District Magistrate,

Dhanbad, AIR 1983 SC 1130; Ramesh Yadav v. District Magistrate,

Etah, AIR1986 SC 315; Suraj Pal Sahu v. State of Maharashtra, AIR

1986 SC 2177; Binod Singh v. District Magistrate, Dhanbad, AIR 1986

SC 2090 and Smt Shashi Aggarwal v. State of U.P., AIR 1988 SC 596,

and came to the conclusion that an order for detention can be validly

passed against a person in custody and for that purpose, it is necessary

that the grounds of detention must show that (i) the detaining authority

was aware of the fact that the detenu is already in detention; and (ii)

there were compelling reasons justifying such detention despite the fact

that the detenu is already in detention. The expression "compelling

WP (Crl) 237/2021 Page 2 reasons" in the context of making an order for detention of a person

already in custody implies that there must be cogent material before the

detaining authority on the basis of which it may be satisfied that (a) the

detenu is likely to be released from the custody in the near future, and (b)

taking into account the nature of the antecedent activities of the detenu, it

is likely that after his release from custody he would indulge in

prejudicial activities and it is necessary to detain him in order to prevent

him from engaging in such activities.

6. When the above principles are applied to the facts of the instant case,

there is no escape from the conclusion that the impugned order cannot

be sustained. Grounds of detention do not mention that detaining

authority is aware of the fact that detenu had already been released on

bail by court of competent jurisdiction at the time of making detention

order. In the present case detaining authority has not drawn any

subjective satisfaction vis-à-vis detention of detenu. There is no

mention of the fact that detenu has applied for bail in criminal case(s)

against him nor is there any satisfaction that detenu has been enlarged

on bail before issuance of impugned order of detention. This clearly

indicates and shows total absence of application of mind on the part of

detaining authority while passing impugned order of detention. In that

view of the matter, impugned detention order is vitiated.

5. Learned counsel for petitioner states that there is a delay of six months

for passing the impugned detention order, that the last alleged activity

has taken place on 17.04.2021, while as order has been passed on

18.10.2021 which has snapped the live proximate link between the

WP (Crl) 237/2021 Page 3 alleged activity and passing the impugned order of detention.

Unexplained delay, according to him, between alleged activity and

passing of impugned detention order has rendered impugned detention

unjustified.

6. Learned counsel for the respondents has argued that the detenue was

ordered to be detained for maintenance of „Security of the State‟and

had he been let free there would have been every likelihood of his

indulging in anti-national activities. It is further stated that the grounds

of detention are precise, proximate, pertinent and relevant. There is no

vagueness or staleness in the grounds. The incident clearly

substantiates the subjective satisfaction arrived at by the detaining

authority. It is also argued that the detention of the detenue has been

ordered strictly in accordance with the provisions of J&K PSA, 1978

and the procedural safeguards prescribed under the provisions of the

PSA and the rights guaranteed to the detenue under the constitution

have strictly been followed in the case.

7. In view of the case set up and submissions made by learned counsel for

the parties, it would be appropriate to say that perusal of grounds of

detention reveals that last activity, in which detenu allegedly indulged

took place on 17.4.2021whereas detention was ordered on 18.10.2021.

The detention of the detenue has been ordered on the basis of FIR No.

51/2021 therefore, it cannot be said that there is no proximity of time

with the detention order. Six months delay cannot be stated to be

inordinate delay to hold that there is no proximity between the alleged

activity and the order of detention.

WP (Crl) 237/2021 Page 4

8. The Supreme Court in Rajinder Arora v. Union of India (2006) 4 SCC

696 has held that if no explanation is furnished for long delay in

passing order of detention, the same is vitiated in law. Live and

proximate link between the past conduct of the detenue and the

imperative need to detain have to be harmonized to rely upon the

alleged illegal activities of the detenue. Old and stale incidents shall be

of no use as has been held in "Sama Aruna Vs State of Telangana &

Anr." reported as (2018) 12 SCC 150. Relevant paragraph No.16 is

extracted as under:

"16. Obviously, therefore, the power to detain, under the Act of 1986 can be exercised only for preventing a person from engaging in or pursuing or taking some action which adversely affects or is likely to affect adversely the maintenance of public order; or for preventing him from making preparations for engaging in such activities. There is little doubt that the conduct or activities of the detenu in the past must be taken into account for coming to the conclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities. But the question is how far back? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account. In Golam Hussain vs State of W.B, this Court observed as follows:(SCC p.535 para

5)

5."No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case".

WP (Crl) 237/2021 Page 5 Suffice it to say that in any case, incidents which are said to have taken place nine to fourteen years earlier, cannot form the basis for being satisfied in the present that the detenu is going to engage in, or make preparation for engaging in such activities".

11. Father of the detenu, namely Showkat Ahmad Bhat as per detention

record had made a representation to the Govt. of J&K through

Principal Secretary Home Department, on 18.11.2021 against the

detention record seeking its revocation. There is, however, nothing

on record as to how this representation was dealt with by the Govt. In

other words it can be said that despite filing representation it was not

considered.

13. In Tara Chand vs State of Rajasthan & Ors., 1980 (2) SCC 321,

Hon‟ble Supreme Court has held that any inordinate and unexplained

delay on the part of the Government in considering the representation

renders the very detention illegal. The Supreme Court in another case

of Rahmatullah vs State of Bihar, AIR 1981 SC 2069 has held that

clause (5) of Article 22 by necessary implication guarantees the

constitutional right to a proper consideration of the representation.

The obligation of the Government to afford to the detenu an

opportunity to make representation is distinct from the Government‟s

obligation to refer the case of the detenu along with representation to

the Advisory Board to enable it to form its opinion and send a report

to the Government. Therefore, it is implicit in clauses (4) and (5) of

Article 22 that the Government, while discharging its duty to

consider the representation, cannot depend upon the views of the

Board on such representation. It has to consider the representation on

its own without being influenced by any such view of the Board. The

WP (Crl) 237/2021 Page 6 Supreme Court in the case of Kundanbhai Dulabhai Sheikh vs.

District Magistrate Ahmedabad & Ors. 1996 Crl.L.J 1981

quashed the detention order only on the ground of delay in disposing

of the representation. Having gone through the observations of the

Supreme Court in the aforesaid cases, this court is of the considered

view that the said decisions with all fours are applicable to the instant

case. Therefore, the detention order is liable to be quashed.

14. Therefore, in the considered opinion of this Court, the detention order,

other than not following the constitutional safeguards is also vitiated

on the ground that the representation filed on behalf of detenue was

not considered.

15. For the foregoing reasons, this petition is allowed and detention Order

No. DMB/PSA/07/2021 dated 18.10.2021, passed by District

Magistrate, Budgam, is quashed. Respondents, including Jail

Superintendent concerned, are directed to release the detenu

forthwith, provided he is not required in any other case(s).

16. Xerox copy of the Detention record, as produced, be returned to the Learned GA.

17. Disposed of.

SRINAGAR 20.05.2022 "Mujtaba "

( M.A.CHOWDHARY) JUDGE

WP (Crl) 237/2021 Page 7 SYED MUJTABA HUSSAIN 2022.05.21 23:45 I attest to the accuracy and integrity of this document