Jammu & Kashmir High Court

Ghulam Qadir Ganno vs Union Territory Of J&K Through on 9 February, 2024

Author: Sanjay Dhar

Bench: Sanjay Dhar

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                        Reserved on 05.02.2023
                                                     Pronounced on 09.02.2023

WP(Crl) No. 46/2023


Ghulam Qadir Ganno, Age 65 years                 .....Appellant(s)/Petitioner(s)
S/o. Rustum Ganoo
R/o. Tander Dachhan, District
Kistwar
Through his wife Farzan Begum,
Age 55 years
W/o. Ghulam Qadir Ganno
R/o. Tander Dacchan, District
Kishtwar
                      Through: Mr. Iqbal Hussain Bhat, Adv.
Q
                               Mr. Akeel Wani, Adv.
                 vs
1.   Union Territory of J&K through                         ..... Respondent(s)
     Commissioner/Secretary, Home
     Department, Civil Secretariat,
     Jammu/Srinagar
2.   District Magistrate, Kishtwar
3.   Senior Superintendent of Police,
     Kishtwar
4.   Superintendent Jail, Kathua
                      Through: Mr. Mohd. Irfan, GA


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

                                JUDGMENT

1. The petitioner has challenged the order of detention bearing No.

2nd/DM/K/PSA/2023 dated 15.04.2023 passed by respondent No. 2-District

Magistrate, Kishtwar (hereinafter to be referred as the Detaining Authority),

whereunder he has been taken into preventive custody in order to prevent

him from indulging in activities prejudicial to the maintenance of public

order and also to the interest of public safety, sovereignty and security of

the State.

2. The impugned order of detention has been assailed by the petitioner on the

grounds that the same has been passed without proper application of mind

inasmuch as respondent No. 2 has, while passing the impugned order of

detention, directed that the petitioner should be detained for a maximum

period. It has been further contended that the petitioner has not been

informed about his right to make a representation to the Detaining

Authority or before the Advisory Board. The petitioner has also contended

that the grounds of detention have not been read over and explained to him

in Kashmiri language as he is an illiterate person who does not understand

any language other than Kashmiri. For this reason, it has been contended

that valuable right of the petitioner to make an effective representation

against the impugned order of detention has been violated.

3. It has been further contended that the grounds of detention are exact replica

of the Police dossier and the same reflects mechanical functioning of the

Detaining Authority. It has been further contended that the impugned order

has been passed by the respondents on the basis of the FIR, which has been

registered against the petitioner's son way back in the year 2012 and as

such, the impugned order of detention is based upon stale incidents. Lastly,

it has been contended that the documents forming the basis of grounds of

detention have not been supplied to the petitioner.

4. The respondents have contested the writ petition by filing counter affidavit

of respondent No. 2(Detaining Authority). In the counter affidavit, it has

been submitted that the petitioner is highly influenced by separatist

ideology and that he has remained affiliated with banned organization of

Hizbul Mujahideen. It has been further contended that the petitioner has

functioned as Over Ground Worker of aforesaid banned organization. It is

also averred that the petitioner has extended support to dumping of arms

and ammunition in the Dachhan area and his activities are largely

prejudicial to the security of the State and as also detrimental to the

maintenance of public order. It has been submitted that all the constitutional

and procedural safeguards have been adhered to by the respondents and the

whole material that has formed basis of grounds of detention has been

furnished to the petitioner. It has also been submitted that the grounds of

detention and other material was read over and explained to the petitioner

in the language, he understands and that the contention of the petitioner in

this regard is against the record. The respondents have also produced

detention record to lend support to their contentions.

5. I have heard learned counsel for the parties and perused the record of the

case including the record of detention.

6. Although a number of grounds have been urged by the learned counsel for

the petitioner for assailing the impugned order of detention, yet the ground

that has prevailed during the course of arguments is that the impugned

order has been passed on the basis of stale incidents. In this regard if we

have a look at the grounds of detention, it bears reference to FIR bearing

No. 51/2012 for offences under Sections 120-B/122 RPC, 13/17 UPA Act

and 3/5 Arms Act registered with Police Station, Chatroo. It is alleged in

the grounds of detention that on 14.08.2012, the petitioner's son, namely,

Tanveer Ahmed while travelling towards Chatroo was intercepted for

checking by naka Police party at Chingam, whereupon he was found

carrying cash of Rs. 3.00 lacs, which he had concealed in a packet along

with one Chinese Gernade and 19 live cartridges. The same were recovered

from his possession, which resulted in registration of aforesaid FIR. It is

also alleged in the grounds of detention that during the course of

investigation, involvement of the petitioner in the anti national activities

also surfaced.

7. There is no mention of any other activity on the part of the petitioner which

may have persuaded the Detaining Authority in passing the impugned order

of detention. At least nothing in this regard finds a mention either in the

grounds of detention or even in the dossier of the Police. The petitioner is

sought to be kept in preventive detention on the basis of an incident which

has taken place on 14.08.2012 i.e. about eleven years prior to the passing of

the impugned order of detention, without there being any reference to any

recent incident involving the petitioner in the grounds of detention. Thus, it

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

a stale incident.

8. The Supreme Court in the case of Sama Aruna v. State of Telengana and

and another, (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 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.

9. Viewed thus, the petition is allowed and the impugned order of detention

bearing No. 2nd/DM/K/PSA of 2023 dated 15.04.2023, issued by

respondent No.2-District Magistrate, Kishtwar, is quashed. The petitioner is

directed to be released from the preventive custody forthwith provided he is

not required in connection with any other case.