Bashir Ahmad Chauhan vs Ut Of J&K And Others
2022 Latest Caselaw 1791 j&K/2

                                       h475




      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                                               Reserved on : 16.09.2022
                                              Pronounced on : 18.10.2022


                                              WP(Crl) No.14/2022



Bashir Ahmad Chauhan                                            ...Petitioner(s)

                            Through:- Mr. Z. A. Qureshi, Sr. Advocate
                                     with Razia Amin, Advocate.
             V/s

UT of J&K and others                                     ...Respondent(s)
                          Through:- Mr. Asif Maqbool, Dy. A. G. vice
                                   Mr. Sajad Ashraf, GA.

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

                                  JUDGMENT

1. This petition in the nature of habeas corpus is directed against the

order of detention bearing No. DMS/PSA/60/2021 dated 18.10.2021 passed

by the District Magistrate, Srinagar, whereby the petitioner has been placed

under preventive detention with a view to prevent him from acting in any

manner prejudicial to the maintenance of the security of the State.

2. The impugned order of detention has been passed by the District

Magistrate keeping in view the activities of the petitioner fully detailed in

the grounds of detention appended with the petition as Annexure III.

Besides giving the narration of the adverse activities of the petitioner, there

is reference to registration of three FIRs, i.e. FIR No. 05/2007 and FIR No.

163/2010 registered in Police Station Handwara and FIR No. 108/2006

registered in Police Station Kralgund. The petitioner is alleged to be an

over ground worker of TRF, an organization indulging in violent activities

with an aim to secede the territory of J&K from India. The primary reason

for putting the petitioner under detention, as is indicated in the grounds of

detention, is that normal law of the country has failed to deter the petitioner

from indulging in subversive activities.

3. The impugned order is assailed by the petitioner inter alia on the

following grounds:-

(i) That there has been inordinate delay in executing the order of

detention passed on 18.10.2021. It is submitted that the order

of detention was executed only on 21.12.2021 though the

petitioner was all along available in the Valley;

(ii) That the order of detention passed by the District Magistrate

did not receive the approval by the Government within the

period of 12 days, and, therefore, the impugned order outlived

its life after the expiry of 12 days from the date of its issuance;

(iii) That the detenue was not supplied the requisite material viz.

dossier, copies of the FIRs and other connected documents

relied upon by the detaining authority, for placing the detenue

under preventive detention;

(iv) Absent the service of requisite material, the petitioner was

deprived of his right to make an effective representation;

(v) That petitioner only knows Kashmiri language and the

grounds of detention were in English and the same were not

read over and explained to him in Kashmir language. This has

deprived the petitioner from knowing the grounds of detention

and making an effective representation there against;

(vi) That the petitioner was not apprised of his right to make a

representation to the District Magistrate or to the Government,

as is mandated by law.

4. Per contra, the reply affidavit filed on behalf of the District

Magistrate, Srinagar indicates that the respondents took the petitioner into

preventive custody after completing all requisite formalities envisaged

under law. It is claimed by the District Magistrate that all the requisite

material was supplied to the petitioner and he was also informed to make a

representation against his detention to the Detaining Authority as well as to

the Government. However, the petitioner did not avail of that opportunity

and choose not to file any representation. It is thus submitted that in the

absence of petitioner's having filed any representation, no prejudice has

been caused to him in any manner by non-supply of relevant material.

There is, however, no direct reply to the plea of the petitioner that there

was inordinate delay in executing the order of detention nor has it been

averred anywhere in the reply affidavit as to why there was delay in

execution of the detention order. There is also no specific reply as to how

there is proximate link between the activities of the petitioner indicated in

the three FIRs registered in the year 2006, 2007 and 2010 respectively with

the order of detention passed in the year 2021.

5. The petitioner has also filed rejoinder, controverting the averments

made by the District Magistrate in his reply affidavit.

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

material on record, I am of the view that this petition is liable to succeed on

the ground that the respondent-Detaining Authority, has failed to explain

the delayed execution of the impugned order of detention.

7. Indisputably, the order of detention was passed on 18.10.2021 and

was executed on 21.12.2021. This is specifically averred by the petitioner

in para 5 of the petition, but there is no reply in rebuttal filed by the

Detaining Authority. As a matter of fact, the District Magistrate in his reply

affidavit has conveniently avoided to indicate the date of execution of

warrant of detention though he submits that the warrant of detention was

executed by SI Sirajudin of Police Station Safakadal and the detenue was

handed over to Superintendent District Jail Baramulla. It is also not

forthcoming from the reply affidavit that the activities the detenue indulged

in the year 2006, 2007 and 2010, for which he was booked in three FIRs,

are relevant and have proximate and live link with the impugned order of

detention. This Court has already dealt with the issue elaborately in the

case of Shabir Ahmad Malik v. UT of J&K and anr, 2022 (2) JKJ (HC)

182. Para 34 of the judgment is relevant and is reproduced hereunder:-

"34. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to time

when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped, depends on the facts and circumstances of each case. Nevertheless, when there is undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case. Verily, there is no cogent explanation coming forth from perusal of the grounds of detention as regards live-link between the prejudicial activities and the purpose of detention and as a result whereof the impugned order of detention is liable to be quashed. Reference in this regard is made to T.A.Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajinder Arora v. Union of India and others (2006) 4 SCC 796."

8. Regarding delay in execution of detention order, suffice it to say that

in the absence of any clear stand taken by the respondents regarding their

having made serious efforts to execute the order of detention and

apprehend the petitioner forthwith, the detention cannot be justified if the

execution of the detention order is inordinately delayed.

9. In the instant case, as noticed above, the respondents have made no

efforts to explain the delay in execution of the order of detention. That

apart, respondents have also failed to produce the record to demonstrate

that the material relied upon by the Detaining Authority for issuance of the

order of detention against the petitioner, was ever supplied to the petitioner.

From reading of the impugned order of detention it clearly transpires that

the order of detention, the grounds of detention and copies of the FIRs were

endorsed to the Superintendent, District Jail, Baramulla for the service

upon the petitioner. The petitioner has specifically denied having received

any of the documents and, therefore, it was incumbent upon the Detaining

Authority to produce the detention record to substantiate its plea taken in

the reply affidavit that all the requisite material relied upon by the

Detaining Authority was supplied to the petitioner. Absent the service of

requisite material upon the petitioner, it was not possible for the petitioner

to make an effective representation against his detention either to the

Detaining Authority or to the Government. Whether the impugned order of

detention was approved by the Government; whether the case of the

petitioner was placed before the Advisory Board for opinion; and whether

it was ultimately confirmed by the Government, could have been seen only

from the original detention records, which, in the instant case was not

produced by the respondents for reasons best known to them.

10. For the foregoing reasons, I find merit in this petition and the same

is, accordingly, allowed. Impugned order of detention is quashed with a

direction to the respondents to release the detenue forthwith, if not required

in any other case.

(Sanjeev Kumar) Judge

SRINAGAR 18.10.2022 Anil Raina, Addl.Reg/Secy

Whether the order is reportable : Yes