Ishfaq Gul vs Ut Of J&K And Others
2024 Latest Caselaw 1605 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Ishfaq Gul vs Ut Of J&K And Others on 22 October, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                  Regular
                                                                  S. No. 2


    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR


                             WP(Crl) 170/2023
                        CrlM(511/2023) CM(984/2024)

Ishfaq Gul
                                                    ... Petitioner/Appellant(s)
Through: Mr. Syed Reyaz Khawar, Advocate with
         Mr. Aabid Hamid Pandith, Advocate

                        V/s
UT of J&K and others
                                                            ... Respondent(s)
Through: Ms. Rekha Wangnoo, GA

CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                 ORDER

22-10-2024 ORAL

1. In the instant petition filed under Article 226 of the Constitution of

India, the petitioner herein has challenged detention order no.

DMP/PSA/23/18 dated 19.04.2023 (for short "impugned order") passed

by District Magistrate, Pulwama- respondent 2 herein (for short

"detaining authority") under and in terms of the provisions of the J&K

Public Safety Act 1978 (for short "Act of 1978").

2. The petitioner has challenged the impugned order on the grounds urged

in the petition.

3. Counter affidavit to the petition has been filed wherein the petition is

being opposed, on the premise, that the petitioner came to be detained

under the Act of 1978 validly and legally in terms of the impugned

order and in the process all constitutional and statutory guarantees and

requirements were complied with and fulfilled by the detaining

authority and that the grounds of detention, order of detention as well

as entire material relied upon by the detaining authority came to be

furnished to the petitioner well within the statutory period provided

under Section 13 of the Act of 1978 and that the order of detention

came to be executed upon the petitioner on 20th April 2003 by

Inspector Latief Shabnum of District Police Lines, Pulwama who read

over and explained to the petitioner the contents of the order of

detention as also the grounds of detention in the language which the

petitioner understood and in lieu thereof the petitioner subscribed his

signatures on the execution report and that the petitioner also came to

be informed that he has a right to make a representation against his

detention to the detaining authority or to the government and despite

having received the entire material furnished to him the petitioner did

not choose to file any representation against his detention.

Head learned counsel for the parties and perused the record.

4. Mr. Khawar, appearing counsel for the petitioner while making his

submissions in line and tune with the averments made and grounds

urged in the petition would contend that the grounds of detention drawn

and framed by the detaining authority on the basis of which the

impugned order came to be passed, are vague, sketchy and ambiguous,

in that, the detaining authority used abbreviations and acronyms at

various places in the said grounds of detention which were not

understandable by the petitioner and in the process the petitioner got

prejudiced by the same and consequently was deprived of making an

effective representation against his detention. Mr. Khawar would thus

insist that on this ground alone the impugned order is vitiated in that

the constitutional guarantee furnished under Article 22 (5) of the

Constitution stands blatantly violated by the detaining authority.

Mr. Khawar would further contend that the petitioner was not

even furnished the relevant material relied upon by the detaining

authority while detaining the detenue, which also did not enable him to

make an effective representation against his detention, on which ground

as well the impugned order is vitiated.

Mr. Khawar would further submit that the detaining authority in

the grounds of detention has shown its awareness about the booking of

the petitioner under Section 107/151 of the Criminal Procedure Code

for having been allegedly involved in undesirable activities prejudicial

to the peace and tranquillity and on the said basis and on the basis of

some discreet reports claimed to have been received by the detaining

authority from some sister agencies, ordered the detention of the

petitioner and that neither on account of the booking of the petitioner

under Section 107/151 Cr.PC the petitioner could have been detained

under preventive detention if at all the petitioner was involved in

activities prejudicial to the peace and tranquillity nor on the basis of the

so called discreet reports referred in the grounds of detention having

formed the basis for detention of the petitioner as same were not

furnished to the petitioner to enable him to make an effective

representation against his detention.

5. On the contrary, Ms. Rekha Wangnoo appearing counsel for the

respondents while opposing the submissions of Mr. Khawar, would

vehemently contend that the order under challenge has been passed by

the detaining authority validly and legally owing to the activities the

petitioner being prejudicial to the security of the state.

6. Insofar as the aforesaid first submission of the counsel for the petitioner

is concerned, a closer examination of grounds of detention manifestly

reveals that the detaining authority indeed has used various acronyms

and abbreviations like JeM and TRF as also OGWs while referring to

some alleged accomplices of the petitioner to be conduits of said JeM

and TRF banned terrorist outfits aiding and abetting the terrorist

activities in and around the Pulwama area. Even the details of said

accomplices have not been detailed out in the grounds of detention so

much so even the dates and year of the alleged activities have not been

spelt out in the grounds of detention. Thus, in view of the said position

obtaining in the matter, the only inescapable conclusion that could be

drawn is that the detaining authority has completely failed to follow the

mandate of Article 22 (5) of the Constitution read with Section 13 of

the Act of 1978 in letter and spirit as the petitioner under these

circumstances can be said to have got prejudiced not only on account of

use of such acronyms and abbreviations in the grounds of detention but

also on account of vague, sketchy and ambiguous contents of the

grounds of detention, and in the process got deprived from making an

effective representation against his detention.

Besides, perusal of the detention record produced by the counsel

for the respondents would reveal that the execution report pertaining to

the execution of the impugned order upon the petitioner has referred to

furnishing of one leaf of detention order, one leaf of notice of

detention, three leaves of grounds of detention and three leaves of

dossier besides copies of FIR, statements of witnesses and other related

documents, making the total number of documents furnished to the

petitioner as eight leaves. A deeper examination of the record available

on the file as also the detention record produced by the counsel for the

respondents tends to show that the petitioner has not been involved or

implicated in any FIR as such the question of furnishing of copy of

FIR, statement of witnesses or else other related documents at the time

of execution of the detention order upon the petitioner by the executing

officer does not arise at all. The aforesaid fact manifestly demonstrates

complete non-application of mind by the respondents which vitiates the

impugned order.

7. Insofar as the aforesaid next submission of the counsel for the

petitioner referred in the proceeding paras is concerned, it is manifest

from the record that the petitioner has been booked under section

107/151 Cr. PC on account of his alleged involvement in undesirable

activities prejudicial to the peace and tranquillity. The grounds of

detention while making a reference to the said fact also provide that on

account of such involvement of the petitioner in such undesirable

activities, the petitioner was produced before Executive Magistrate and

after executing a bond for maintenance of good behaviour, was

released, however, neither the grounds of detention nor the detention

record produced by the counsel for the respondents reveals that the

petitioner after having been bound down under section 107/151 Cr.PC

was found to have violated the bond executed by him necessitating an

action against him for such violation so much so the grounds of

detention also do not provide any instance or incident post bounding

down of the petitioner under section 107/151 Cr.PC which could be

said to be either pre-judicial to the security of the state or public order

warranting taking recourse to preventive detention of the petitioner by

the detaining authority and although some discreet reports are stated to

have been received from some sister agencies by the detaining

authority referred in the grounds of detention yet the details of such

discreet reports have not been spelt out neither in the grounds of

detention nor any material regarding the same is traceable in the

detention record produced by the counsel for the respondents. Thus,

under these circumstances, it can safely be said that the detaining

authority has acted in the matter arbitrarily and in colourable exercise

of power with complete non-application of mind while detaining the

petitioner in terms of the impugned order.

Here a reference hereunder to the judgment of the Apex court

passed in case titled as "Abdul Latif Abdul Wahad Sheikh vs. B. K.

Jha, reported in 1987 (2) SCC 22" would be advantageous, wherein it

has been held that "it is only the procedural requirements which are the

only safeguard available to the detenue that are to be followed and

complied with as the court is not expected to go behind the satisfaction

of the detaining authority and that the detaining authority is obliged to

mention in the grounds as to on which material it based its satisfaction

and failure to do so would render the detention illegal." It has also been

held by the Apex court in case titled as "Thahira Haris etc. etc. Vs.

Government of Karnataka, reported in AIR 2009 SC 2184" that

failure on the part of the detaining authority to supply all relevant

material relied upon at the time of making of detention order renders

the detention order unsustainable. A further reference to the judgment

of the Apex court passed in case titled as "State of Manipur and

others versus Buyamayum Abdul Hanan alias Anand and Another,

reported in 2022 SCC Online SC 1455" would also be appropriate

here, wherein at para 24 following has been held:

"24. In other words, the right of personal liberty and individual

freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law and once the detenu was able to satisfy while assailing the order of detention before the High Court in exercise of jurisdiction Article 226 of the Constitution holding that the grounds of detention did not satisfy the rigors of proof as a foundational effect which has enabled him in making effective representation in assailing the order of detention in view of the protection provided under Article 22(5) of the Constitution, the same renders the order of detention illegal and we find no error being committed by the High Court in setting aside the order of preventive detention under the impugned judgment."

8. Viewed thus, what has been observed, considered and analysed

hereinabove, the instant petition deserves to be allowed and is

accordingly allowed, as a consequence whereof the detention order no.

DMP/PSA/23/18 dated 19.04.2023 passed by District Magistrate,

Pulwama is quashed with a direction to the respondents including the

concerned jail authority to release the petitioner forthwith if not

9. The detention record furnished by counsel for respondents is returned

back in the open court.

(JAVED IQBAL WANI) JUDGE Srinagar 22-10-2024 N Ahmad Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No