Imran Ahmad Ganie vs Ut Of J&K & Anr
2023 Latest Caselaw 1052 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR
                                                Reserved on: 11.08.2023
                                                Pronounced on:29.08.2023

                         WP(Crl.) No.201/2022


IMRAN AHMAD GANIE                                        ...Petitioner(s)

             Through: - Mr. Shafqat Nazir, Advocate.
Vs.

UT OF J&K & ANR.                                       ...Respondent(s)

             Through: - Mr. Jehangir Dar, GA.


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


                                 JUDGMENT

1) By the medium of instant petition, the petitioner has challenged

the legality and veracity of the order No.47/DMB/PSA/2022 dated

09.04.2022, issued by District Magistrate, Baramulla - respondent No.2

herein, in terms whereof, Imran Ahmad Ganie (hereinafter referred to

as the detenue), has been ordered to be taken into preventive custody

and lodged in Central Jail, Jammu (Kotbalwal), for preventing him

from acting in any manner prejudicial to the security of the State.

2) The petitioner has contended that the detaining authority has

passed the impugned detention order mechanically without application

of mind as the allegations mentioned in the grounds of detention have

no nexus with the detenue and that the same have been fabricated by

the police in order to justify its illegal action of detaining the detenue.

It has been contended that the grounds of detention are vague on the

basis of which no prudent man can make a representation against such

allegations. It has been further contended that the procedural safeguards

have not been complied with in the instant case, inasmuch as whole of

the material which formed basis of the impugned detention order has

not been supplied to the petitioner. That the grounds of detention are

non-existent and stale and that the representation filed by the detenue

has not been considered by the respondents.

3) The respondents have resisted the writ petition by filing a reply

thereto. In their reply, the respondents have submitted that the activities

of detenue are highly prejudicial to the security of the State. It is

pleaded that the detention order and grounds of detention along with

the material relied upon by the detaining authority were handed over to

the detenue and the same were read over and explained to him. It is

contended that the grounds urged by the petitioner are legally

misconceived, factually untenable and without any merit. That the

detenue was informed that he can make a representation to the

government as well as to the detaining authority against his detention.

It is further claimed in the reply affidavit that all statutory requirements

and constitutional guarantees have been fulfilled and complied with by

the detaining authority and that the order has been issued validly and

legally. The respondents have placed reliance on various judgments of

the Supreme Court and they have also produced the detention record to

lend support to the stand taken in the counter affidavit.

4) 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 was not furnished the whole of the material to enable him to make an effective representation against his detention.

(II) That the impugned order of detention is based upon stale incident having no proximate link to the activities alleged to be prejudicial to the maintenance of public order.

5) So far as the first ground of challenge is concerned, a perusal of

the material on record reveals that the petitioner has received detention

warrant (01 leaf), notice of detention (01 leaf), grounds of detention

(03 leaves), dossier of detention (Nil), copies of FIR, statements of

witnesses and other related relevant documents (03 leaves) (total 08

leaves), and in token whereof, his signatures have been obtained on the

document under the style 'Execution Report', which forms part of

detention record. If we have a look at the grounds of detention, it bears

reference to as many as six FIRs, Viz. FIR Nos.85/2016, 77/2016,

60/2016, 91/2016, 57/2016 and 92/2017 of P/S Kreeri. It was

incumbent upon respondents to furnish not only the copies of the FIRs

but also the statements of witnesses recorded during investigation of

the said FIRs and other material on the basis of which petitioner's

involvement in the said FIRs is shown. All this material would run in

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

covered in only three leaves. Even the copy of the dossier of detention

has not been supplied to the petitioner.

6) Thus, 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. 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.

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

an effective and purposeful representation which is his constitutional

right guaranteed under Article 22(5) of the Constitution of India, unless

and until the material, on which the detention is based, is supplied to

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

material renders the detention order illegal and unsustainable in law.

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) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953

SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer

Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241,

and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR

2009 SC 2184).

8) Next it has been contended by learned counsel for the petitioner

that the impugned order of detention has been passed on the basis of

stale incidents having no proximate link with the activities alleged to

be prejudicial to the security of the State.

9) A perusal of the grounds of detention reveals that the incidents

referred therein pertain to the years 2016 and 2017, that is more than

seven and six years prior to the passing of impugned order of detention.

There is no reference to any recent incident involving the petitioner in

the grounds of detention. Thus, it is clear that the order of detention has

been based on past and stale incidents.

10) The Supreme Court in the case of Sama Aruna v. State of

Telengana and & anr, (2018) 12 SCC 150, while holding that the

incidents which are said to have taken place long back, cannot form

basis for being satisfied that the detenue is going to engage in similar

activities, observed as under:

"17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it."

From the aforesaid enunciation of the law on the subject, it is

clear that there has to be a live and proximate link between the past

conduct of the detenue and the activities alleged to be prejudicial to the

maintenance of security of the state. In the instant case, the said link is

completely missing as the time between the order of detention and the

incident referred to in the grounds of detention is far too large to

presume such a link. The impugned order of detention, therefore,

cannot be sustained.

11) Although it is mentioned in the grounds of detention that as per

recent reports, the petitioner has recycled into secessionist fold and is

carrying forward illegal programmes but no specific details in this

regard have been mentioned in the grounds of detention. The

allegations regarding recent activities of the petitioner are, therefore,

vague against which no prudent person can make an effective

representative. Thus, detention of the petitioner on these vague

allegations cannot be sustained.

12) For the afore-stated reasons, the petition is allowed and the

impugned detention order is quashed. The respondents are directed to

release the petitioner from the preventive custody forthwith, provided

he is not required in connection with any other case.

13) The record be returned to learned counsel for the respondents.

(Sanjay Dhar) Judge Srinagar 29.08.2022 "Bhat Altaf, PS"

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