Jammu & Kashmir High Court - Srinagar Bench
Imran Nabi Wani vs Union Territory Of J&K & Others on 12 March, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Sr. No.35
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No.183/2023
Imran Nabi Wani. ... Appellant(s)
Through: Mr. Wajid Haseeb, Advocate.
Vs.
Union Territory of J&K & Others. ...Respondent(s)
Through: Mr. Mubeen Wani, Dy.AG.
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGEMENT
12.03.2024
Per Atul Sreedharan-J (Oral)
1. The present appeal has been filed by the appellant who is aggrieved
by the judgment and order dated 01.08.2023 by which his petition
praying for a writ of Habeas Corpus was dismissed by the learned
Single Judge. The reasoning given by the learned Singly Judge is in
paragraph-10 where the learned Single Judge has observed that the
appellant was given an opportunity to make a representation to the
detaining authority as also to the Government against his detention
order. Earlier the learned Single Judge while recording the grounds of
the Habeas Corpus petition has in paragraph 2(VI) taken cognizance
of the fact that the detenu has submitted a representation before
respondent no. 2 but the same was never considered. The learned
Single Judge has not given any finding on this aspect which we shall
refer to later in this order.
2. Learned counsel appearing for the UT of J&K while supporting the
order passed by the learned Single Judge has drawn the attention of
this Court to paragraph-13 of the judgment passed by the learned
Single Judge where the learned Single Judge has observed "that Court
do not even go into the question as to whether the facts mentioned in
the grounds of detention are false. The reason for the rule is that to
decide the evidence may have to be taken by the Courts and that is not
the policy of law of preventive detention. This matter lies within the
competence of the Advisory Board". In other words, learned counsel
for the UT of J&K has argued that irrespective of whether the grounds
of detention are vague or precise or correct or false, the High Court
must have a hands off approach in a writ of Habeas Corpus filed by a
detenu under the Public Safety Act where the High Court is satisfied
that the procedure provided under the law has been complied with. He
has also referred to paragraph-12 of the order passed by the learned
Single Judge where there is a reference to a six judge constitution
Bench judgement of the Supreme Court in the year 1951 which held
that the scope of looking into the manner in which the subjective
satisfaction is arrived at by the detaining authority is limited and that
the Court while examining the material which is the main basis of
subjective satisfaction of the detaining authority, would not act as a
Court of appeal and find satisfaction on the ground that on the basis of
the material before the detaining authority, another view was possible.
Thus learned counsel appearing for the UT of J&K has argued that
this Court is bound by the law laid down by the six judge Constitution
Bench of the Supreme Court way back in the year 1951 and that the
scope for judicial review in an order of preventive detention is limited
to the extent of assessing whether the statutory and constitutional
safeguards of procedure were adhered to.
3. We have gone through the grounds of detention which have been filed
as an annexure along with the appeal. It would be necessary to briefly
elucidate the sum and substance of the grounds of detention. The
grounds of detention inform the appellant/detenu that based upon the
dossier set by the Senior Superintendent of Police, Srinagar dated
07.09.2022, the appellant is a person who is "deeply influenced by
radical ideology" and was associated with Over Ground Workers,
thereby sharing sensitive information relating to the movement of
Police and Security Forces in the area where he stayed and he had
significant potential to motivate more youth towards terrorism in the
valley. It further intimated the appellant that he has an "evil ideology"
which would foment trouble and was a threat to the security of the
Union Territory of Jammu & Kashmir creating a fear psychosis in the
minds of the people in that area and that he along with other members
of the gang of anti national elements was stoking secessionist
sentiments in the valley.
4. The grounds of detention also refer to four cases in all against the
appellant which are of the year 2011, 2015, 2016 & 2017. The causa
sine qua non appears to have been the grant of bail to the appellant in
a case of 2017, in which a Dy.SP was lynched. The grounds of
detention refer to the appellant as the "main accused" in that case.
Here we would like to record our displeasure with regard to the
language used in the grounds of detention in paragraph-2 on the
second page, where the detaining authority informs the appellant that
he is presently under the judicial custody in the 2017 case and it is
expected that the appellant would "manage bail" and his release from
prison would result in the execution of some major act of terror within
the district of Srinagar and that he would start providing logistic
support to terrorist which opinion was allegedly based upon "credible
reports and compelling reasons". Likewise, the detaining authority in
the grounds had referred to the dossier prepared by the SSP, Srinagar
according to which the Police has reliably learned from "technical
inputs" that there is a likelihood and impression that the appellant
would indulge in the activities prejudicial to the security of the Union
Territory of J&K, if he is allowed to move freely. We take umbrage to
the phrase "manage bail" used in the grounds of detention. Bail is
granted or denied by a Court of competent jurisdiction on the material
on record before the Court concerned. We hope the executive is more
cautious in future while describing proceedings before a Court and
desist from using words and phrases that indicate, though not directly,
but by necessary implication, that extraneous considerations may have
weighed or may weigh in the mind of a Court while granting bail.
5. The bare reading of the grounds of detention discloses that the same
does not disclose specific reasons, facts and circumstances, datelines,
time and place in order to give a reasonable opportunity to the
appellant to prefer a representation that is comprehensible and
explanatory. In view of the vagueness and loose ended nature of the
grounds of detention, the only probable answer that can be given by
the detenu is a bald denial and that he has been held in detention
without there being any material against him. We have also
considered the submission put forth by the learned counsel for the
Union Territory of J&K that reliance upon the cases of the year 2011,
2015, & 2016 by the detaining authority cannot be questioned if the
same was sufficient for him to form a subjective opinion relating to
the detention of the appellant. In this regard, learned counsel for the
respondent- Union Territory of J&K has drawn our attention to
paragraph-13 of the order under challenge passed by the learned
Single Judge which reads as herein:
"The Courts do not even go into the question as to
whether the facts mentioned in the grounds of
detention are correct or false, the reason for the
rule is that to decide this, evidence may have to be
taken by the Courts and that it is not the policy of
the law of preventive detention. This matter lies
within the competence of the advisory board".
This according to the learned counsel for the Union Territory of J&K,
is the correct exposition of law as on date. He submits that the learned
Single Judge has rightly assessed that the constitution Courts do not
have to go into the assessment of the facts given in the grounds of
detention and arrive at a finding whether the same are correct or false.
6. We respectfully disagree with the submission put forth by the learned
counsel appearing for the Union Territory of J&K, that this Court
cannot go into the question with regard to the facts mentioned in the
grounds of detention and whether the same are true or false. If this
argument is accepted as the correct proposition of the law on
preventive detention, it would reduce the constitutional Court to the
level of being the Bench clerks of the executive or its hatchet man to
silently give approval to the orders of detention even if they are not
based upon sound reasoning, only because the procedure required
under the constitution and the statute have been adhered to. If such be
the law, the constitution, the constitution Courts would lose all
relevance, their existence would be an unfortunate and unnecessary
expenditure on the exchequer. Fortunately, it is not so. The reasons
why we have said so have already been dealt with us extensively in
case "Mohammad Younis Mir vs. UT of J&K" (LPA No. 141/2023)
and for the sake of brevity we are not reproducing our discussion and
findings in that Judgement. Suffice it to say, we are of the firm
opinion that this Court while exercising its preliminary powers under
article 226 does not suffer any impediment with regard to the extent to
which we can exercise those powers. However, as already observed
by us in the Judgement aforementioned, care shall be taken by the
High Court that it does not behave like the knight errant and instead
uses that plenary power with a sense of responsibility and
circumspection while at the same time does not suffer from judicial
paralysis.
7. While examining the legality of a detention order, it is trite law that
the High Court does not have to carry out a rowing enquiry or
appreciate material to the extent a trial court would while trying a
criminal case. But nonetheless, it must satisfy itself that the reasons
given by the detaining authority in the grounds of detention are
precise and verifiable on the material on the basis of which the order
of detention is passed. The High Court would have to bear in mind
always that the constitutionality of the laws of detention based upon
article 22 of the Constitution of India, are supplemental to the
fountainhead of that right which is article 21. Under the
circumstances, all detention orders must be examined for their legality
in the backdrop of article 21. In this regard, as held by the Supreme
Court in "Rekha vs. State of Tamil Nadu"2011 5 SCC 244and
recently in "Amina Begum vs. State of Telangana" 2023 9 SCC
587whereinthe Supreme Court observed in paragraph66, that
preventive detention was concealed as an extra-ordinary measure by
the framers of our constitution has been rendered ordinary with its
reckless invocation over the years as if it were available for use even
in ordinary course of proceedings. If further held that to unchain the
shackles of the preventive detention it is important that the safeguards
enshrined in our constitution particularly under the "Golden Triangle"
formed by articles 14, 19 & 21 are diligently enforced.
8. Thus we hold in the facts and circumstances of the present case that
the grounds of detention provided to the appellant are perfunctory and
grossly vague giving no details when it accuses of appellant of being
an Over Ground Worker without mentioning the proscribed
organisation for which he is working as OGW and phrases like
"credible reports" and "compelling reasons" and "technical inputs",
goes no further to elucidate as to what those credible reports or
compelling reasons or technical inputs were in order to give a
reasonable and fair opportunity to the appellant to represent against
his order of detention. The same notwithstanding, a representation
was indeed made by the appellant through his brother which was
received by the office of the District Commissioner, Srinagar, but
which was never considered by the respondent. The same would also
render the detention bad on the grounds of non-adherence to
procedure which required that there must be an order passed after
considering the representation of the appellant. The order under
challenge is conspicuously silent on this aspect also.
9. Therefore, in view of what has been argued, considered and held by us
hereinabove, the impugned order of detention bearing no.
DMS/PSA/112/2022 dated 08.09.2022 is quashed. The appellant shall
be set forth at liberty.
10. The appeal is disposed of.
(MOKSHA KHAJURIA KAZMI) (ATUL SREEDHARAN)
JUDGE JUDGE
SRINAGAR:
12.03.2024
SHAISTA
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
