Azan Khurshid vs Ut Of J&K And Anr
2024 Latest Caselaw 1663 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Azan Khurshid vs Ut Of J&K And Anr on 31 October, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                          S. No. 4
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR
                              HCP No. 178/2024
Azan Khurshid                                                           ...Petitioner(s)
Through: Mr. Yawar Khan, Advocate.
                                Vs.
UT of J&K and Anr.                                                    ...Respondent(s)
Through: Mr. Zahid Qais Noor, GA.
CORAM:
     HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
                                   ORDER

31.10.2024 (ORAL)

1. In the instant petition filed under Article 226 of the Constitution, the petitioner herein has challenged Order of detention No.DMS/PSA/06/2024 dated 04.04.2024 (for short the impugned order) passed by respondent 2 herein (for short the detaining authority) under and in terms of the provisions of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act of 1978).

2. The impugned order has been challenged by the petitioner on the following grounds.

a) That the order of detention has been passed on the recommendations of Sr. Superintendent of Srinagar police as is evident from order impugned, the detaining authority has only pursued the contents and recommendations mentioned in dossier notably the other material has not been taken into consideration while passing the order. The detaining authority was supposed to apply its mind with regard to whole material placed before him so as to arrive just conclusion, therefore the order impugned has been passed in arbitrary and in mechanical way which is against the mandate of law.

b) That no compelling reason and cogent material was available before detaining authority for passing the order impugned for the reason the detune was already in custody since 2019 when he was a juvenile under the age of minority aged 17 years approx.

c) That there is no live link and proximity between offending act and order of detention. The offending acts are very older therefore could not had been taken into account while passing order impugned doing so renders it bad and illegal. The Hon'ble supreme Court in Sama Aruna v. State has held that stale incident should not be taken into account and more importantly when detune is already in jail. Therefore impugned order deserves to be quashed.

d) That the detaining authority must be alive about all facts and circumstances while curtailing liberty of individual, non awareness renders it bad and illegal. Notably detune was granted bail by competent court but this fact nowhere transpires neither from grounds nor for order impugned.

e) That the grounds which had been quashed or had expired such kind of grounds should not be taken account while passing fresh order either wholly or partially doing so renders it bad and illegal in light of

law laid down by Hon'ble supreme Court in case chhangan Bhawankahar v. N 1 kalna (1989) 2 SCC 318.

f) That the detaining authority was required to provide whole material to the detune so that he could have filed effective representation in terms of section 13 of J&K public safety act and Article 22(5) of the Constitution same has not been done. It is worth to mention here detune being read upto only class as such cannot presumed to having workable knowledge of English, detaining authority was bound to provide translated version of documents relied. Notably instant order has been passed on the basis of dossier that too has not been provided to detune only on this count impugned order deserves to be quashed.

g) That the detune has been roped in by police as a scapegoat only to save themselves for conducting investigation of FIR registered against detune and were bound to bring them to logically conclusion instead of doing "cherry picking "Which is detrimental to the precept of fairness only on this count impugned order deserves to be quashed.

h) That upon general allegations preventive detention cannot be fastened when sufficient remedies are available under ordinary law therefore preventive detention cannot be made as substitute for ordinary law, without exhausting remedies available under ordinary law preventive detention is not justified.

i) That the detune has been falsely implicated in the FIR which has been made stair for booking the detune in the impugned order is evident from FIRs itself and detune is even not remotely connected reason being having firm belief in rule of law and it's supremacy. He is remaining busy always in his business activities. More importantly the role played by detune is not properly comprehend therefore no specific allegations is attributed.

j) That detaining authority was supposed to inform detune about right of representation, that you had a right of representation before detaining authority despite the independent right before government. The detaining authority had informed detune about representation only before Government and that too without specifying time and authority. It is worth to mention here the father of detune has filed representation before detaining authority on 03/03/2023 and till date no decision has been taken which amounts to infringement of the right, therefore impugned order deserves to be quashed.

3. Reply affidavit to the petition has been filed by respondents, wherein the petition is being opposed on the premise that the petitioner herein came to be detained on account of his activities having been found prejudicial to the Public Order, as the petitioner was found to be a habitual criminal, involved in multiple criminal cases of stone pelting, as also provoking general masses, especially the youth, as such, his detention became imperative, which came to be ordered by the detaining authority only after carefully examining the dossier and other material furnished to it by the sponsoring agency, and after deriving subjective satisfaction in this regard upon fulfilling and complying with statutory requirements and Constitutional guarantees.

Heard counsel for the parties and peruse of the record.

4. According to counsel for the petitioner, the detaining authority has detained the petitioner herein primarily on account of his alleged involvement in FIRs referred in the grounds of detention pertaining to the years 2018 upto 2021, in which FIRs the petitioner herein had been bailed out by the competent court, and instead of challenging the said bail orders, before competent courts the respondents have taken recourse to preventive detention illegally, that too after a considerable period of time of more than three years, without therebeing any proximate link between the said FIRs and the impugned order of detention passed in the year 2024.

Counsel for the petitioner would further contend that the detaining authority, while detaining the petitioner, in terms of the impugned order, has failed to record compelling reasons thereof in order to justify the necessity of detention of the petitioner under preventive detention.

It is also been contended by counsel for the petitioner that the detaining authority has failed to furnish the entire material referred to and relied upon by it for detaining the petitioner herein, which in the process deprived the petitioner herein of making a representation against his detention.

5. On the contrary, counsel for the respondents, while opposing the submission of counsel for the petitioner would contend that the petitioner herein came to be detained legally, and validly by the detaining authority after complying with and fulfilling statutory requirements and Constitutional guarantees on account of the activities of the petitioner having been found to be prejudicial to the Public Order, stating further that the entire material relied upon by the detaining authority was furnished to the petitioner herein and besides the petitioner herein also came to be informed that he can make a representation against his detention.

6. Before proceeding to advert to the aforesaid rival submission of appearing counsel for the parties, it would be appropriate to refer the judgment of the Apex Court passed in case titled as "Rameshwar Shaw v. District Magistrate Burdwan and Anr", reported in A.I.R.1964 SC 334, being relevant herein wherein it came to be held that in deciding the question as to whether it is necessary to detain a

person, the authority has to be satisfied with the said person, if not detained, may act in a prejudicial manner and this conclusion can be reasonably drawn and reached by the detaining authority generally in the light of the evidence/material placed before it against the said person, and the detaining authority then has to examine the said evidence /material and take an independent decision as to whether it is necessary to detain such person in order to prevent him from acting in a prejudicial manner.

Thus, what emanates from the aforesaid position of law laid down by the Apex Court is that while detaining a person under preventive detention, the detaining authority has to take into account past conduct and antecedent history of person, being largely from prior events showing his tendencies or inclination that an inference could be drawn whether he is likely even in the future to act in a prejudicial manner. However it is incumbent upon the detaining authority that such past conduct and antecedent history of the person for which the detaining authority purports to act should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person becomes necessary, as otherwise it would be irrational to take into account activities which took place years before the date of detention.

7. Having regard to the aforesaid propositions and principles of law and coming back to the case in hand in particular the aforesaid first plea of the counsel for the petitioner it is not in dispute that the detaining authority while detaining the petitioner herein has referred to and relied upon FIRs of 2018, 2019, 2020, and 2021 for the purposes of detaining the petitioner herein in the year 2024. Perusal of the grounds of detention in particular would reveal and suggest that the detaining authority has failed to indicate a proximate link between the activities of the petitioner herein covered in the said FIRs and the impugned order of detention, thus suggesting that the detaining authority has acted mechanically in the matter and without application of mind which as such would vitiate the impugned order of detention. A reference in this regard to the judgment of the Apex Court passed in case titled as "Sama Aruna V. State of Telangana" reported in 2018 (1) SCC 150 would be germane.

8. Insofar as the aforesaid next plea raised by the counsel for the petitioner is concerned, the respondents though have stated in their reply affidavit that the order of detention, notice of detention, grounds of detention, dossier of detention, copies of FIRs, statements of witnesses, and other relevant documents were handed over to the petitioner, besides informing that he can make a representation against the detention, yet the said averment contained in the reply affidavit has not been supported by the respondents by producing the detention record for examination of this court in order to ascertain as to whether actually the petitioner herein came to be furnished with all these documents more so, in view of the specific plea raised by counsel for the petitioner in the petition in this regard. Thus, the failure of the respondents to produce the detention record in this behalf entails drawing of an adverse inference against the respondents herein that the respondents have failed to furnish the entire material referred to and relied upon for detention to the petitioner while detaining him in terms of the impugned order. A reference in this regard to the judgment of the Apex Court, passed in case titled as "Abdul Latief 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".

9. Having regard to the aforesaid position obtaining in the matter, the instant petition deserves to be allowed. Accordingly, the petition is allowed and consequently the impugned order No.DMS/PSA/06/2024 dated 04.04.2024 is quashed with a direction to the respondents including concerned jail authority to release the detenue forthwith from the preventive detention unless he is not required in any other case.

(JAVED IQBAL WANI) JUDGE SRINAGAR 31.10.2024 Ishaq

Whether the order is speaking? Yes/No Whether approved for reporting ? Yes/No