Union Territory Of Jammu And vs Aftab Hussain Dar
2024 Latest Caselaw 1209 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Union Territory Of Jammu And vs Aftab Hussain Dar on 13 August, 2024

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                AT SRINAGAR
                                                    Reserved on       23.07.2024
                                                    Pronounced on.     13.08.2024


LPA No. 158/2024


1. Union Territory of Jammu and                    .....Appellant(s)/Petitioner(s)
   Kashmir through Principal
   Secretary, Home Department,
   J&K Government, Civil
   Secretariat, Srinagar/Jammu
2. District Magistrate, Pulwama
3. Senior Superintendent of Police,
   Pulwama
4. Superintendent Central Jail,
   KotbhalwalJammu
                       Through: Mr. Illyas Nazir Laway, GA.
                 Vs
     Aftab Hussain Dar, S/o. Abdul Gani                       ..... Respondent(s)
     Dar R/o. Avindgund, Teh. Rajpora,
     Pulwama through his father Ab Gani
     Dar, S/o. Lt. Ghulam Ahmad Dar
     R/o. Avindgund Tehsil Rajpora,
     District Pulwama
                       Through: Mr. G. N. Shaheen, Adv. with
                                Mr. Asif Ali, Adv.

Coram: HON'BLE THE CHIEF JUSTICE (ACTING)
       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                 JUDGMENT

Per Oswal-J

1. This intra court appeal is directed against the judgment dated 02.04.2024,

whereby the writ petition filed by the respondent, assailing the order of his

detention dated 23.06.2023, has been allowed by the writ court and the

respondent has been ordered to be released from custody. The learned writ

court has also directed the appellants to pay a compensation of Rs. 2 lacs

to the respondent-detenue for detaining him in an illegal manner.

2. The judgment has been impugned by the appellants on the ground that

though the learned writ court has not raised any doubt with regard to the

compliance of the procedural safeguards as envisaged under Article 22(5)

of the Constitution, by the appellants but at the same time, the learned writ

court has acted as an appellate court by examining the subjective

satisfaction derived by the Detaining Authority-appellant No. 2 herein,

while passing the order of detention. It is also urged that imposing of cost

of Rs. 2 lacs has led to the conclusion of existence of mala fide intention

on the part of the Detaining Authority, whereas the Detaining Authority

had passed the order of detention after deriving the subjective satisfaction

that the activities of the respondent were prejudicial to the maintenance of

security of the State/Union Territory.

3. Mr. Illyas Nazir Laway, learned Government Advocate representing

appellants has vehemently argued that the learned writ court has not

considered the matter in its right perspective and has passed the judgment

impugned against the mandate of law. Mr. Laway has further submitted

that the learned writ court could not have quashed the order of detention

by returning a finding that the expression "security of the State" could not

have been a ground for issuance of the detention order as the "State of

Jammu and Kashmir" has ceased to exist by operation of Jammu and

Kashmir Reorganization Act, 2019. He has further argued that the

imposition of costs of Rs. 2 lacs upon the appellants was not warranted at

all since there were no mala fides on the part of the Detaining Authority in

passing the order of detention. The learned counsel for the appellant has

relied upon the judgment of the Single Bench of this Court in "Farhat

Mir v Union Territory of J&K and anr, WP(Crl) No. 45/2021",

decided on 25.02.2022, authored by one of us.

4. On the contrary, Mr. G. N. Shaheen, learned counsel appearing for the

respondent has vehemently argued that the judgment impugned has been

passed by the learned writ court in accordance with law, more particularly

when the Detaining Authority was absolutely silent in respect of the

follow up action taken in respect of violation of the order passed by the

Executive Magistrate under section 107/151 of the Code of Criminal

Procedure (for short „the Code‟) against the respondent. He has further

submitted that the respondent is not interested in the compensation

awarded by the learned writ court and in case this Court comes to the

conclusion that the cost was not warranted at all, appropriate orders may

be passed. He has relied upon the judgment of the Hon‟ble Supreme Court

in "Amina Begum v State of Talangana and others", (2023) 9 SCC

587.

5. Heard and perused the record including the detention record produced by

the appellants.

6. A perusal of the record reveals that appellant No. 3 submitted a dossier

dated 15.06.2023 to appellant No. 2 i.e. District Magistrate, Pulwama with

a request to detain the respondent under the J&K Public Safety Act, 1973

(for short "the Act"). In the dossier, it was stated that the respondent had

come in contact with some prominent Over Ground Workers of banned

terrorists outfits of Rajpora-Pulwama area and while working as an Over

Ground Worker, the respondent has been providing every logistic support

to the terrorists and their associates and is in contact with the handlers,

thereby motivating and instigating the youth of District Pulwama and its

adjoining areas to indulge in antinational activities. The activities of the

respondent were found to be prejudicial to the overall peace, security and

tranquillity of the State/Union Territory of J&K in general and District

Pulwama in particular by the appellant No.3. It was also stated in the

dossier dated 15.06.2023 that the respondent was bound down under

section 107/151 of the Code by the Executive Magistrate 1st Class,

Rajpora for maintaining good behaviour in future, after he was produced

before him. By placing reliance upon the dossier, the Detaining Authority

prepared the grounds of detention, wherein besides extracting the illegal

activities of the respondent from the dossier, it was also mentioned that

despite being bound down under section 107/151 of the Code by the

Executive Magistrate 1st Class, Rajpora, he did not respond in a desirable

manner. The Detaining Authority thereafter proceeded to issue the order

of detention dated 23.06.2023.

7. The respondent being aggrieved of the order of detention dated

23.06.2023 assailed the same before the writ court on the traditional

grounds that the relevant material relied upon by the Detaining Authority

was not provided to the respondent, more particularly copy of the dossier,

copy of the FIR and copy of the proceedings under section 107/151 of the

Code undertaken by the Executive Magistrate 1st Class, Rajpora. It was

also urged by the respondent that the allegations made in the grounds of

detention were vague and no prudent man could have made representation

against such vague order of detention.

8. The appellants filed the response before the writ court stating thereby that

all the procedural as well as statutory safeguards were complied with by

the appellants, not only while passing the order of detention but also at the

time of executing the order of detention. It was further pleaded that the

respondent was provided with whole material relied upon by the Detaining

Authority while issuing the order of detention. The order of detention

came to be executed on 24.06.2023 by Inspector Mustaq Ahmed and he

was handed over to the Deputy Superintendent, Central Jail, Kot Bhalwal,

Jammu for lodgement. It is also mentioned that the order/warrant of

detention and the grounds of detention were read over and explained to the

detenue in the language, which he fully understood and in lieu whereof, he

signed the execution report. He was also informed of his right to make a

representation against the order of detention.

9. The writ court after examining the detention record and hearing the

learned counsel for the parties, quashed the order of detention dated

23.06.2023 and directed the appellants to pay a compensation of Rs. 2 lacs

to the respondent.

10. It is contended by the appellants that the learned writ court has acted like

an appellate authority while examining the subjective satisfaction recorded

by the Detaining Authority, which was beyond the scope of judicial

review. There is no cavil to the settled proposition of law that the courts

while exercising the power of judicial review while examining the validity

of the order of detention cannot sit as a court of appeal and find fault with

the satisfaction recorded by the Detaining Authority on the ground that

another view was also possible on the basis of material relied upon by the

Detaining Authority. But equally true is that where the right of life and

personal liberty is affected by an order passed by a statutory authority,

then the constitutional courts are under obligation to ensure that the power

vested in statutory authority for the purpose of detaining the detenue is not

exercised in an arbitrary and mechanical manner and further that the

constitutional and procedural safeguards provided by the preventive

detention law are strictly complied with.

11. The Hon‟ble Apex Court in the case of Amina Begum (supra) has held as

under:

11.It is common knowledge that recourse to preventive detention can be taken by the executive merely on suspicion and as a precaution to prevent activities by the person, sought to be detained, prejudicial to certain specified objects traceable in a validly enacted law. Since an order of preventive detention has the effect of invading one's personal liberty merely on suspicion and is not viewed as punitive, and the facts on which the subjective satisfaction of the detaining authority is based for ordering preventive detention is not justiciable, meaning thereby that it is not open to the constitutional courts to enquire whether the detaining authority has erroneously or correctly reached a satisfaction on every question of fact and/or has passed an order of detention which is not justified on facts, resulting in narrowing down of the jurisdiction to grant relief, it is only just and proper that such drastic power is not only invoked in appropriate cases but is also exercised responsibly, rationally and reasonably. Having regard to the circumstance of loss of liberty by reason of an order of preventive detention being enforced without the detenu being extended any opportunity to place his case, the constitutional courts being the protectors of Fundamental Rights have, however, never hesitated to interdict orders of detention suffering from any of the vices on the existence whereof such limited jurisdiction of judicial reviewability is available to be exercised.

xx xxxxxx

28. In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether:

28.1. The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would

be the sine qua non for the exercise of the power not being satisfied;

28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

28.3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

28.4. The detaining authority has acted independently or under the dictation of another body;

28.5. The detaining authority, by reason of self-created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case;

28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

28.7. The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

28.8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached; 28.9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and 28.10. The timelines, as provided under the law, have been strictly adheredto.

(emphasis added)

12. From a perusal of the detention record, we find that no material except the

dossier was submitted to the Detaining Authority by the appellant No.3

and the Detaining Authority by placing reliance merely upon the dossier

only, prepared the grounds of detention and issued the order of detention.

It was after the order of detention was issued by the Detaining Authority

that the appellant No.3 submitted the Report of Beat Officer, Intelligence

Report and Complaint under section 107/151 of the Act to the appellant

No.2 i.e. the Detaining Authority only on 27.06.2023 i.e. after the issuance

of order of detention. Neither the order issued by the Executive

Magistrate, Rajpora nor any material in respect of non-compliance of the

order passed by the Executive Magistrate on the part of the respondent,

was placed before the appellant No. 2 to derive subjective satisfaction that

the detention of the respondent was necessary to prevent him from acting

in manner prejudicial to the security of the State/UT.

13. It is evident that the Detaining Authority has acted as a mouthpiece of the

sponsoring agency by ordering the detention of the respondent under the

J&K Public Safety Act, 1973. Even if, we condone this un-condonable

lapse on the part of the Detaining Authority, still we find that even the

proceedings of the Executive Magistrate 1st Class, Rajpora in respect of

binding down the respondent were never submitted to the Detaining

Authority. The consequences for breach of the bond have been provided

under the Code but no material was placed before the appellant No.2 as to

whether respondent was proceeded against in terms of the Code or not.

How the Detaining Authority derived its subjective satisfaction that the

bound down order passed by the Executive Magistrate 1 st Class, Rajpora

under section 107/151 of the Code did not produce the desired results,

remains an unsolved mystery even before us. The learned writ court after

examining the detention record, has also come to the same conclusion that

the Detaining Authority is absolutely silent as to how the bond, if any,

executed by the respondent and his surety came to be breached by them,

by allegedly re-engaging in the illegal activities so as to warrant issuance

of order of detention against him. We do not find any perversity or

illegality in the finding returned by the writ court.

14. So far as the finding recorded by the writ court that there cannot be any

occasion for the District Magistrate or Divisional Commissioner or even

for the Government of Union Territory of J&K to employ the expression

"Security of the State" as a ground for preventive detention is concerned,

we do subscribe to the same. The Division Bench of this Court has already

considered this issue in detail in "Yawar Ahmed Malik vs. Union

Territory of J&K &Ors." 2024 Legal Eagle (J&K) 416, and has held as

under:

"19. The Judgment cited by the learned counsel for the appellant delivered by the Single Bench of this Court in case titled Arif Aijaz Shahri Vs. UT of J&K and Ors., to demonstrate that there has been nonapplication of mind on the part of the detaining authority insofar as the alleged activities of the detenue have been reflected to be prejudicial to the Security of the State and not the Union Territory of J&K. The learned counsel submits that after the application of J&K Re-Organization Act of 2019, the J&K no more remained a State but was converted into two Union Territories, therefore, the detaining authority ought to have applied its mind and detained the detenue for the acts prejudicial to the Security of the Union Territory of J&K.

20. Article 12 of the Indian Constitution States that, "Definition: In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India."

There is no doubt that the definition of State as contained in [Section 3 (58) of General Clauses Act, 1897] includes Union Territory. The term, "all local or other authorities within the territory of India or under the control of the Government of India" comprises States and Union Territories. The term State includes the Government of each State that is the State Executive and legislature of each State that is the State legislatures. It is pertinent to mention that it includes Union Territories as well.

21. We do not subscribe to the view taken by the learned Single Bench in the case supra and we, accordingly, held that the Judgment rendered by the Single Bench is not applicable to the instant case."

15. Further from the record we find that the representation was submitted by

the father of the respondent on 03.07.2023, which was forwarded by the

Deputy Secretary to Government, Home Department, Civil Secretariat,

Jammu/Srinagar to the Special Director General Police CID, Jammu on

10.07.2023 and there is nothing on record to demonstrate as to whether the

same was decided by the appellants or not. The appellants were under

constitutional obligation to decide the representation and to intimate its

outcome to the respondent. Having not done so, the right of the respondent

as guaranteed under Article 22(5) of the Constitution has been violated. In

„Ummu Sabeena Vs. State of Kerala reported as (2011) 10 SCC 781',

the Hon‟ble Supreme Court of India has held that the history of personal

liberty, as is well known, is a history of insistence on procedural

safeguards. The expression "as soon as may be", in Article 22(5) of the

Constitution of India, clearly shows the concern of the makers of the

Constitution that the representation, made on behalf of detenue, should be

considered and disposed of with a sense of urgency and without any

avoidable delay.

16. It was also urged by the appellants that it was not a case at all warranting

the award of compensation of Rs. 2 lacs particularly when no mala fides

were alleged by the respondent. We find that the respondent has nowhere

alleged mala fide against the appellants in his writ petition and the learned

counsel for the respondent too has submitted that the respondent is not

interested in compensation of Rs. 2 lacs awarded in his favour but is

interested in protecting his liberty only.

17. For all what has been said and discussed above, the present appeal is

partly allowed and the judgment of the writ court to the extent of awarding

compensation of Rs. 2 lacs in favour the respondent is set aside. The

respondent is directed to be released forthwith, if not already released.

18. The record of detention be returned to the learned Government Advocate.

                                     (RAJNESH OSWAL)                       (TASHI RABSTAN)
                                           JUDGE                       CHIEF JUSTICE (ACTING)

           Jammu
           13.08.2024
           Rakesh PS
                                           Whether the order is speaking:     Yes
                                           Whether the order is reportable:   Yes