Tanseem Ahmad Sheikh @ Tanveer Ahmad vs Union Territory Of J&K Through
2024 Latest Caselaw 1518 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Tanseem Ahmad Sheikh @ Tanveer Ahmad vs Union Territory Of J&K Through on 4 October, 2024

Author: Chief Justice

Bench: Chief Justice

                                                                    Page |1



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                         LPA No. 126/2024
                         CM No. 3116/2024
                                           Reserved on: 17.09.2024
                                           Pronounced on: 04.10.2024

Tanseem Ahmad Sheikh @ Tanveer Ahmad
S/O Mohammad Shaban Sheikh
R/O Bohu Tehsil Awantipora District Pulwama
Through his father namely Mohammad Shaban Sheikh

                                           ...Appellant/Petitioner(s)

           Through: Mr. M. Ayoub Bhat, Advocate.

                              Vs.
1.Union Territory of J&K through
 Commissioner/Secretary to Govt.
 Home Department, Civil Secretariat, Srinagar Kashmir.
2. District Magistrate Pulwama.
3. Superintendent, Central Jail Kotbhalwal Jammu.

                                                 ...Respondent(s)

           Through: Mr. Faheem Nisar Shah, GA.

CORAM: HON'BLE THE CHIEF JUSTICE
          HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                           JUDGMENT

Per Chowdhary, J

1. The judgment and order dated 15.05.2024 passed by the learned

Single Bench ('the impugned judgment' for short) in WP(Crl) No.

239/2023, is under challenge in the present Letters Patent Appeal

filed by the appellant, whereby the Habeas Corpus Petition, filed by

the appellant, was dismissed with the following observations:-

"...Learned counsel for the petitioner has argued that the representation made by him to the Home Department has not been processed Page |2

and considered by the concerned authorities and as such valuable right of the petitioner being considered for release on the representation made by him has been lost. The counsel has refereed to annexure 4 in support of his contention that representation was duly preferred before the Home Department. It is not revealed from annexure-4, alleged representation, that the same was in fact presented/filed before the competent authority for consideration. May be, the representation even if prepared has remained with the father of the petitioner only through whom it was prepared. The petitioner cannot raise grouse that the representation of the petitioner has not been considered by the authorities as the same never reached concerned quarter. The reliance placed upon AIR 2000 Supreme Court 2504 titled State of Maharashtra and others Vs. Santosh Shankar Acharya, wherein the Apex Court emphasized the requirement of communication of outcome of the representation made by the detenue before the concerned authorities. This authority has no application in the instant case as the representation itself is held not filed by the petitioner before the authorities. Hence, there is no question of communicating the outcome of the representation to the petitioner. Viewed in the light of aforesaid discussion, the petition is misconceived. The detention order passed against the petitioner is in accordance with law and is upheld. The petition is accordingly dismissed."

Page |3

2. The case, as projected by the appellant, is that the judgment

impugned, on the face of it, is liable to be set aside, as the same is

contrary to law and justice and has been passed in clear violation of

constitutional mandate guaranteeing fundamental right of liberty and

freedom. It is further pleaded in the appeal that it was the admitted

case before the learned Single Bench that the appellant-detenue was

already detained under Public Safety Act by the detaining authority

and while passing detention order, earlier grounds of detention have

also been taken into consideration. That detention order against the

appellant-detenue, however, came to be quashed by this Court. Next,

it is pleaded that the learned Single Bench has not considered the

fact that the appellant-detenue had duly submitted representation

before the concerned authority, however, same has not been

considered by the concerned authority. The fact of filing

representation before the concerned authority is not denied by the

respondents, even then the learned Single Bench has recorded, in the

impugned judgment, that the representation seems to have remained

with the father of the detenue and not sent to the concerned

authority.

3. It has been next alleged that the appellant-detenue was illegally

arrested and illegal proceedings under Sections 107 and 151 Cr.PC

were initiated and illegally the appellant-detenue was made to

execute a bond, undertaking that detenue will not indulge in any

illegal activity, however, no date of arrest, no date of execution of

bond, no date of release, was made known or communicated to the

appellant-detenue, as such, the detention order being illegal, and the

same has not been at all considered by the learned Single Bench.

Page |4

4. Mr. M.Ayoub Bhat, learned counsel appearing for the appellant-

detenue, argued that while passing the judgment impugned, the

learned Single Bench has recorded in the impugned judgment that

the representation seems to have remained with the father of the

detenue and not sent to the respondents. He argued that the Single

Bench further observed that the alleged representation was infact not

presented/filed before the competent authority for consideration. He

further argued that the impugned judgment is liable to be set aside

because specifically it was pleaded before the Single Bench that the

alleged manipulated fresh grounds of detention are totally vague and

bald, no specification with regard to time, date, month and year of

alleged activities and other allegations, attributed to the detenue,

after his release, was mentioned anywhere.

5. Mr. Faheem Nisar Shah, learned Government counsel appearing for

respondents, vehemently resisted the appeal. He has contended that

the impugned judgment does not suffer from any legal infirmity and

the detention order has been passed without any malice, inasmuch as

safeguards provided under the Constitution of India as also the rights

of the appellant-detenue have been observed, while ordering his

detention, as such, challenge thrown to the impugned judgment is

not sustainable, hence on this score only the present appeal merits

dismissal. It is further contended that the appellant-detenue has been

detained with a view to prevent him from indulging in the activities

which are prejudicial to the security of State.

6. Record, pertaining to the present case, has been produced.

7. Heard, perused the record and considered the matter at length.

Page |5

8. The grounds of detention, on which the detention order was based by

the detaining authority, reveals that the appellant-detenue was an

Over Ground Worker of banned terrorist organization 'Hizb-ul-

Mujahedeen' and was reportedly been working for terrorist namely

Riyaz Naikoo of Beighpora now neutralized and Aaqib Mushtaq of

Malangpora; that the detenue being fundamentalist in nature and

sympathizer of terrorists was providing every logistic support

/shelter to the terrorists of the said banned organization; that on 22-

05-2020 the detenue was apprehended in suspicious circumstances

during 'naka' checking at Kanjinag Awantipora and on physical

search three posters of banned terrorist organization were recovered

from the possession of the detenue; that on retrieving the mobile

details of the detenue, his uniform dressed photograph carrying a

pistol was found regarding which case FIR No. 68/2020 U/S 18 and

20 of Unlawful Activities (Prevention) Act was registered in Police

Station Awantipora and investigation was taken up; that during the

course of investigation of the case, it divulged that the detenue has

close liaison with the terrorists and was providing logistic support/

shelter to the terrorists of banned terrorist organization Hizb-ul-

Mujahedeen (HM); that the detenue was subsequently released on

default bail in the said case granted by TADA/POTA Court

Srinagar; that the detenue was found involved earlier in case FIR

No.126/2016 U/S 341, 323, 188, 336 & 307 RPC, FIR No. 147/2016

U/S 148, 149, 341 & 307 RPC registered in Police Station

Awantipora; that the detenue was also a chronic stone-pelter and

was found deeply involved in aggravating the law and order problem

in the year 2016; that being an Over Ground Worker (OGW) of Page |6

banned terrorist Organization Hizul Mujahedeen (HM), whose aim

and objective is to secede Jammu & Kashmir from the Union of

India and annex it with the Pakistan, the detenue was detained under

Section 8(a) of J&K Public Safety Act 1978 vide Order No.

40/DMP/PSA/2022 dated 01-06-2022 and was lodged at District Jail

Kupwara; that the detenue filed petition WP(Crl) No. 349/2022

before this Court for quashment of the said detention order, which

came to be quashed vide order dated 09-11-2022 and was

consequently released.

9. The grounds of detention further revealed that after the release of the

appellant-detenue, he was closely monitored during which police

and other agencies have gathered credible inputs that the detenue

again have been indulged in polluting the juvenile mind of

youngsters of the area towards terrorism thereby endangering the

peace and security of the area, which is highly prejudicial to the

security, sovereignty and integrity of the State; that the detenue

again was apprehended on 10-05-2023 under Section 107 Cr.PC

read with 151 Cr.PC as it was made to believe that he might indulge

in activities prejudicial to the peace and tranquility of the area and

subsequently was produced before Executive Magistrate

Awantipora, who released him after execution of a bond that he

would maintain good behavior in future; that as per reports being

received from reliable sources, it has come to fore that the detenue

was again trying to establish contacts with terrorists of banned

terrorist Organization "Hizb-ul-Mujahedeen (HM)" for extending

logistic support to the terrorists of said organization; that the detenue

was likely to formally join in the militancy if not prevented as early Page |7

as possible; that the detenue remaining at large would not be

advisable in so-far-as current security scenario in the area is

concerned; that the detenue was arrested under Section 107 read with

Section 151 of Cr.PC and subsequently, in order to prevent the

detenue from indulging in the activities, which are prejudicial to the

security of the State, respondents found it necessary to detain him by

invoking the provisions of J&K Public Safety Act 1978.

10.While perusing the impugned detention order available on file, the

ground raised by the appellant-detenue appears to be valid as the

detenue has been detained by the concerned authorities twice on the

same set of grounds, which are replica to each other and general in

nature. The petitioner was initially detained in preventive custody by

the detaining authority vide detention order No.21/DMP/PSA/20

dated 31.08.2020, which was, however, quashed by this Court vide

judgment dated 27.04.2022 passed in WP(Crl) No. 185/2020.

Subsequently, by second detention order No.40/DMP/PSA/22 dated

01.06.2022, the detenue was again detained under preventive

detention based on the same facts, for which he had been detained

vide earlier detention order. This detention order, on being assailed

before this Court in Habeas Corpus Petition, was also quashed vide

judgment dated 09.11.2022 passed in WP(Crl) No. 349/2022.

11. Having gone through the grounds of detention in the earlier

detention orders, it appears that the detaining authority had based the

detention order on the same set of circumstances, including the FIRs,

considered in passing the first detention order. It appears from the

perusal of the impugned detention order that the detaining authority,

besides making reference of FIRs of 2016 and 2020 registered Page |8

against the detenue, had based the detention order on the same set of

facts, for which earlier detention order had been passed, except that

some security bond was taken from the appellant-detenue by the

Executive Magistrate, however, while making execution of bond, no

fresh activity was alleged to have been committed or attributed

against the appellant-detenue. Thus, the only ground of detention,

other than the grounds that made basis for passing two earlier

detention orders, which were quashed by this Court, no fresh activity

had been attributed against the appellant-detenue, and merely

seeking security bond from the appellant-detenue by the Executive

Magistrate without any specific activity on his part, for which

otherwise some criminal case would have been registered against

him, does not make out a case for passing fresh detention order. In

this situation of the matter, the detaining authority cannot be said to

have applied its mind to draw subjective satisfaction for passing of

the impugned detention order.

12. Apex Court in case Chhagan Bhagwan Kahar Vs. N.L. Kalna &

Ors., reported as AIR 1989 Supreme Court 1234, has held that the

grounds mentioned in the earlier detention order cannot be the

ground for issuance of fresh detention order unless there are fresh

facts for passing such an order. Relevant portion of the said

judgment is reproduced as under:-

"...It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari Page |9

the grounds of the said order should not be taken into consideration either as a whole or in part even along-with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order."

13. One of the most precious right as guaranteed under the Constitution

of India is personal liberty. No one can be denied of his right to life

and personal liberty except in accordance with procedure established

by law. Though, this personal liberty may be curtailed when person

faces a criminal charge or is convicted of an offence sentenced to

imprisonment. The Constitution, however, by adding Article

22(5) have incorporated provision for detention of a person without

any formal charge and trial and without such person being held

guilty of an offence and sentenced by a competent court. This is to

keep the society safe from such activities that are likely to deprive

large people of their right to life and personal liberty. The

justification of such detention on suspicion or reasonability which

requires action to be taken to prevent apprehended objectionable

activities, Article 22(5) of the Constitution provides for the same.

14. Article-22(5) of the Constitution of India provides that specific

protections to under trials and detainees in India. Article-22(5) of the

Constitution of India reads as under:-

"When any person is detained in pursuant of an order made under any law providing for preventive detention, the Authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and afford him an earliest opportunity of making a representation against the order, therefore, it casts a duty upon the Detaining Authority to communicate to the detenue the grounds on which the order is made and a P a g e | 10

corresponding right arising in him of making such representation against his detention."

15. Perusal of the record, as produced by the learned counsel for the

respondents, reveals that the father of the appellant-detenue had filed

a representation dated 05.06.2023 on behalf of the detenue before the

concerned authority, copy whereof came to be forwarded to the

Special D.G. of Police CID, J&K by the Deputy Secretary to

Government, Home Department, J&K vide No. Home/PB-

V/288/2023(7199340) dated 21.06.2023, for comments. The said

representation came to be disposed of and the District Magistrate

Pulwama was conveyed vide No. Home/PB-V/288/2023(7199340)

dated 09.10.2023 by Deputy Legal Remembrance Home Department

J&K, that the representation after being considered has been found

without any merit at this stage.

16. Therefore, the contention of learned counsel for the appellant-

detenue that the learned Single Bench, while passing the impugned

judgment, had not appreciated the fact that the detenue had already

filed representation against his detention, is correct.

17. Hon'ble Supreme Court in the case Tara Chand vs. State of

Rajasthan & Ors., reported as 1980 (2) SCC 321 has held that any

inordinate and unexplained delay on the part of the Government in

considering the representation renders the very detention illegal.

18. The Supreme Court in another case Dr. Rahmatullah vs. State of

Bihar, reported as AIR 1981 SC 2069 has held that clause (5) of

Article 22 of the Constitution of India, by necessary implication,

guarantees the constitutional right to a proper consideration of the

representation. The obligation of the Government to afford to the P a g e | 11

detenue an opportunity to make representation is distinct from the

Government's obligation to refer the case of the detenue along with

representation to the Advisory Board to enable it to form its opinion

and send a report to the Government. Para-4 of the said judgment

will be advantageous to be quoted hereunder:-

"4.The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub- Article (5) of Article 22 reads:

'When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.' This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenue is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution.

The non-consideration or an unreasonably belated consideration of the representation tantamount to non- compliance of Sub-Article (5) of Article 22 of the Constitution."

19. The Supreme Court in the case Kundanbhai Dulabhai Sheikh vs.

District Magistrate Ahmedabad & Ors. reported as 1996 Crl.L.J P a g e | 12

1981 quashed the detention order only on the ground of delay in

disposing of the representation.

20. The detention order, impugned before the Writ Court, was thus,

found to be based on almost same grounds, which had been used to

base two earlier detention orders against the appellant-detenue,

which had been quashed by this Court. The third detention order is

thus, not sustainable on the same grounds. Moreover, though,

respondents had taken a stand against their own record, that the

detenue had not filed representation against his detention, whereas,

representation was stated to have been considered and rejected by

the Government of J&K. However, the same was not conveyed to

the detenue, which vitiates the detention order impugned.

21.For the foregoing reasons and keeping in view the above said legal position, the present appeal is allowed and the judgment impugned dated 15.05.2024 passed in WP(C) No. 239/2023 by the learned Single Bench, is set aside. Consequently, Habeas Corpus Petition is allowed and the order of detention against the appellant-detenue bearing No. 32/DMP/PSA/23/2023 dated 24.05.2023 passed by District Magistrate Pulwama, is, hereby, quashed. Appellant-detenue is ordered to be released from detention, if otherwise, not required in any other case(s).

22. The LPA is disposed of, accordingly, as allowed, along-with connected application(s).

                     (M. A. CHOWDHARY)               (TASHI RABSTAN)
                              JUDGE                       CHIEF JUSTICE
Srinagar
04.10.2024
Muzammil. Q


              Whether the Judgment/Order is reportable:      Yes / No