Shakeel Ahmad Bhat vs Union Territory Of J&K & Ors
2022 Latest Caselaw 1733 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                              Reserved on: 22.08.2022
                                              Pronounced on:11.10.2022


                        WP(Crl.) No.08/2022

SHAKEEL AHMAD BHAT                                 ...PETITIONER(S)

            Through: - Mr. Wajid Haseeb, Advocate.
Vs.

UNION TERRITORY OF J&K & ORS.                   ...RESPONDENT(S)

            Through: - Mr. Sajad Ashraf, GA.


CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1) Impugned in this petition is order of detention bearing

No.DMS/PSA/103/2021 dated 16.12.2021, issued by District Magistrate,

Srinagar (for brevity "Detaining Authority"). In terms of the aforesaid

order, Shakeel Ahmad Bhat @ Adja son of Lt. Ghulam Qadir Bhat

resident of Malik Angan Feteh Kadal, Srinagar, (for short "detenu") has

been placed under preventive detention and lodged in Central Jail,

Srinagar.

2) The petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without application

of mind, inasmuch as the statutory procedural safeguards have not been

complied with in the instant case. It has been further urged that the

material which formed basis of the grounds of detention and the

consequent order of detention has not been provided to the detenue. It

has also been contended that the grounds of detention are vague, non-

existent and stale and there is total non-application of mind on the part of

the detaining authority.

3) The respondents, in their counter affidavit, have disputed the

averments made in the petition and insisted that the activities of detenue

are highly prejudicial to the maintenance of public order. It is pleaded

that the detention order and grounds of detention were handed over to

the detenue and same were read over and explained to him; that the

grounds urged by the petitioner are legally misconceived, factually

untenable and without any merit and the impugned detention order has

been passed strictly in accordance with law occupying the field. In

support of their stand taken in the counter affidavit, the respondents have

also produced the detention record.

4) I have heard learned counsel for parties and perused the material

on record.

5) Learned counsel for the petitioner, while seeking quashment of the

impugned order, projected various grounds but his main thrust during the

course of arguments was on the following grounds:

(I) That the detenue's right of making an effective representation against his detention has been violated as the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him.

(II) That there has been non-application of mind on the part of detaining authority while passing the impugned detention order.

6) The first ground projected by the learned counsel for the petitioner

that the detenue has been disabled from making an effective

representation against the order of detention as the material, which

formed basis of the grounds of detention and the consequent order of

detention, has not been furnished to him, appears to have substance. A

perusal of the detention record reveals that the petitioner has been

provided copies of grounds of detention, notice of detention (total 11

leaves). If we have a look at the grounds of detention, it bears reference

to twelve FIRs Viz. FIR Nos.117/1997, 2102/2003, 114/2003, 20/2008,

39/2010, 39/2017, 65/2014, 02/2021, 90/2021, 69/2007, 70/2007 and

79/2012. It was incumbent upon respondents to furnish not only the

copies of these FIRs but also the statements of witnesses recorded during

investigation of these FIRs and other material on the basis of which

petitioner's involvement in these FIRs is shown, particularly when the

petitioner is not nominated in these FIR. All this material would run in

dozens of pages and it is impossible that all this material would be

covered in only eleven leaves. Apart from this, the grounds of detention

bear reference to proceedings under Section 107 and 151 of Cr. P. C

against the detenue but the copies of relevant documents pertaining to

these proceedings have also not been provided to the detenue, as is clear

from the detention record.

7) Thus, the contention of the petitioner that whole of the material

relied upon by the detaining authority, while framing the grounds of

detention has not been supplied to him, appears to be well-founded.

Obviously, the petitioner has been hampered by non-supply of these vital

documents in making an effective representation before the Advisory

Board, as a result whereof his case has been considered by the Advisory

Board in the absence of his representation, as is clear from the detention

record. Thus, vital safeguards against arbitrary use of law of preventive

detention have been observed in breach by the respondents in this case

rendering the impugned order of detention unsustainable in law.

8) It needs no emphasis that the detenue cannot be expected to make

an effective and purposeful representation which is his constitutional and

statutory right guaranteed under Article 22(5) of the Constitution of

India, unless and until the material, on which detention is based, is

supplied to the detenue. The failure on the part of detaining authority to

supply the material renders detention order illegal and unsustainable.

While holding so, I am fortified by the judgments rendered in Sophia

Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC

3051) and, Thahira Haris Etc. Etc. V. Government of Karnataka &Ors.

(AIR 2009 SC 2184).

9) Next it has been contended by the petitioner that the impugned

detention order suffers from non-application of mind on the part of the

detaining authority, inasmuch as the detaining authority while passing

the impugned detention order was not certain as to on which ground the

impugned order is being passed as it has made reference to both the

expressions, namely, "activities prejudicial to the maintenance of public

order" and "activities prejudicial to the security of the UT" in the

grounds of detention.

10) According to the learned counsel for the petitioner, the aforesaid

course adopted by the detaining authority in this case exhibits lack of

application of mind and lack of certainty in the decision making of the

detaining authority. To support his contention, the learned counsel has

placed reliance on the judgment of the Supreme Court in G. M. Shah v.

State of J&K, 1980 AIR 494.

11) Before determining the issue raised by learned counsel for the

petitioner in this case, it would be appropriate to notice the legal position

on the subject. The Supreme Court in Dr. Ram Manohar Lohia v. State

of Bihar and others, 1966 AIR SC 740, while discussing the distinction

between the expressions "law and order", "public order" and "security of

the State" has observed as under:

"One has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenue has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors(3)."

12) From the ratio laid down by the Supreme Court in the above

referred judgment, it is clear that there is a clear distinction between

"security of the State" and "maintenance of public order". An act

prejudicial to the security of the state has to be of graver nature than an

act prejudicial to the maintenance of public order. The Supreme Court in

the aforesaid judgment has made it clear that if an order of detention is

made on both grounds i.e. on the ground of "security of the State" as

well as on the ground of "maintenance of public order", such an order

has to be held as illegal. The aforesaid ratio has been reiterated and

reaffirmed by the Supreme Court in the case of G. M. Shah v. State of

J&K, 1980 AIR 494.

13) In the instant case, the detaining authority has mentioned in the

grounds of detention that the petitioner is a constant threat to the

maintenance of security of the UT. While passing the impugned

detention order, it has been provided that the petitioner is to be taken

into preventive custody with a view to prevent him from acting in any

manner prejudicial to the maintenance of public order. Thus, it is clear

that the detaining authority is unsure as to whether the activities of the

detenue are prejudicial to the security of the State or the same are

prejudicial to the maintenance of public order. The detaining authority

while passing an order of detention has to be satisfied and sure about the

exact nature of the activities of the detenue. In the instant case, the

manner in which the grounds of detention and the impugned order of

detention have been framed clearly reflects a state of uncertainty and

tentativeness on the part of the detaining authority while recoding its

satisfaction. This renders the impugned order of detention unsustainable

in law.

14) Viewed thus, the petition is allowed and the impugned order of

detention is quashed. The detenue is directed to be released from the

preventive custody forthwith provided he is not required in connection

with any other case.

15) The detention record be returned to learned counsel for the

respondents

(Sanjay Dhar) Judge SRINAGAR 11.10.2022 "Bhat Altaf, PS"

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