Waseem Maqbool Bhat vs Union Territory Of J&K &Ors
2023 Latest Caselaw 79 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                  LADAKHAT SRINAGAR

                                                  Reserved on: 19.12.2022
                                               Pronounced on: 09.02 .2023


                         WP(Crl.) No.135/2022


WASEEM MAQBOOL BHAT                               ...PETITIONER(S)
Through: - Mr. Ashiq Hussain, Advocate.

Vs.

UNION TERRITORY OF J&K &ORS.                   ...RESPONDENT(S)
Through: - Mr. Usman Gani, GA.


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

                                 JUDGMENT

1) By the instant petition, the petitioner has sought quashment of

order No.08/DMK/PSA/2022 dated 29.03.2022, issued by District

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

order, Waseem Maqbool Bhat (for short "the detenu") has been placed

under preventive detention in order to prevent him from acting in any

manner prejudicial to the security, sovereignty and integrity of the State.

2) The petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without application

of mind, inasmuch as the grounds of detention are mere reproduction of

the dossier. It has been further contended that the Statutory procedural

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

the material that formed basis of the grounds of detention and the Page |2

consequent order of detention has not been provided to the detenue and

that there has been total non-application of mind on the part of the

detaining authority while passing the impugned detention order.

3) Upon being put to notice, the respondents appeared through their

counsel and filed their reply affidavit, wherein they have disputed the

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

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 the statutory requirements and constitutional requirements 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 the judgments of the Supreme Court in HardhanSaha v.

State of W.B (1975) 3 SCC 198, The Secretary to Govt. Public Law

and Order-F) and anr. vs. Nabia and another, (2015) 12 SCC

127,Gautam Jain vs. Union of India, 2017 (1) Jammu Kashmir Law

Times Vol. 1 (SC) 1, DebuMahato vs. State of WB, AIR 1974 SC 816

and Ashok Kumar vs. Delhi Administration and others, AIR 1982 Page |3

SC 1143. In order to buttress the contentions raised in the counter

affidavit, the respondents have produced the detention record.

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

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 the Detaining Authority while passing the impugned order of detention, inasmuch as, it was not alive to the fact that the detenu had been enlarged on bail in one of the criminal cases registered against him as the said fact is not mentioned in the grounds of detention.

(III) That the impugned order of detention is based upon stale incidents having no proximate link to the activities alleged to be prejudicial to the maintenance of security of State.

6) Per contra, the learned counsel for the respondents has made an

attempt to justify the passing of the order impugned by contending that

the detenue was a habitual criminal, inasmuch as there were various

FIRs pending against him and on this basis, the Detaining Authority was

well within its jurisdiction to pass the impugned order of detention as

there was every likelihood of the detenue indulging in similar activities.

Page |4

It has been further contended that all the documents relied upon by the

Detaining Authority were provided to the detenue and in token of having

received the same, the detenue has signed the receipt. It is also urged that

the contents of the documents were read over and explained to the

detenue in the language understood by him.

7) While going through the detention records, as produced, the first

ground projected by the learned counsel for the petitioner gets support

from the material on record. A perusal of the detention record produced

by learned counsel for the respondents reveals that the material has been

received by the petitioner on 13.04.2022. Report of Executing Officer in

this regard forms part of the detention record, a perusal whereof reveals

that it bears the signature of petitioner and according to it, the petitioner

has received copy of detention order (01 leaf), Notice of detention (01

leaf), grounds of detention (02 leaves), dossier of detention (Nil), Copies

of FIR, statements of witnesses and otherrelated relevant documents

(Nil) (total 04 leaves).

8) It is clear from the execution report, which forms part of the

detention record, that copy of the police dossier has not at all been

supplied to the detenue. If we have a look at the grounds of detention, it

bears reference to two FIRs, i.e., FIR Nos.74/218 and 12/2018 of P/S

Qaimoh. 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 Page |5

petitioner's involvement in the said FIRs is shown, but the same has not

been done by the respondents.

9) 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. Rather the

record produced by the respondents corroborates the fact that whole of

the material relied upon by the detaining authority and transmitted to

him by the concerned sponsoring agency has not been furnished to the

detenue. 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.

10) 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. 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), ThahiraHaris Etc. Etc. V. Government of Karnataka &Ors.

(AIR 2009 SC 2184), Ram Krishan Bhardwaj v. State of Delhi, AIR

1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, and Page |6

Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999

SLJ 241.

11) Next it has been contended that the impugned detention order

suffers from non-application of mind on the part of the detaining

authority, inasmuch as the grounds of detention do not bear any

reference to the fact that the petitioner had already been admitted to bail

in FIR No.74/2018. In this regard, the petitioner has placed on record

copy of the order passed by the Court of Additional Sessions Judge,

TADA/POTA, Srinagar. The non-mentioning of this important fact in

the grounds of detention exhibits non-application of mind on the part of

detaining authority. This shows that the detaining authority has not

meticulously examined the record while passing the impugned order of

detention which renders the same unsustainable in law. I am supported

in my aforesaid view by the judgment of the Supreme Court rendered in

the case of Anant Sakharam Raut v. State of Maharashtra &Ors.

AIR 1987 SC 137.

12) It has been further 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, sovereignty and integrity of the State.

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

referred therein pertain to the year 2018, that is more than four years

prior to the passing of impugned order of detention. There is no Page |7

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.

14) 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 public order. In the instant case, the said link is completely missing as

the time between the order of detention and the incidents 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.

Page |8

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

detention bearing No. 08/DMK/PSA/2022 dated 29.03.2022, issued by

respondent No.2-District Magistrate, Kulgam, 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.

16) The record, as produced, be returned to the learned counsel for the

respondents.

(Sanjay Dhar) Judge Srinagar 09.02.2023 "Bhat Altaf, PS"

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