Jammu & Kashmir High Court
Zahoor Ul Hassan Kamal vs Union Territory Of Jammu And Kashmir on 9 October, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 13.08.2024
Pronounced on 09.10.2024
HCP No. 82/2023(O&M)
Zahoor Ul Hassan Kamal, Age 47 .....Appellant(s)/Petitioner(s)
years, S/o. Late Sh. Wali Mohd.
Kamal, R/o. Kamal Mohalla,
Kishtwar, Tehsil and District
Kishtwar, presently lodged at District
Jail, Amphalla, Jammu
Through: Mr. Faheem Showkat Bhat, Adv.
Vs
1. Union Territory of Jammu and Kashmir ..... Respondent(s)
through Financial Commissioner
(Additional Chief Secretary) to
Government, Home Department, Civil
Secretariat, Srinagar/Jammu
2. District Magistrate, Kishtwar
3. Senior Superintendent of Police, Kishtwar
4. Superintendent, District Jail, Amphalla,
Jammu
Through: Mr. Bhanu Jasrotia, GA
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The petitioner has filed the instant petition for quashing the order of
detention bearing No. 07th/DM/K/PSA of 2023 dated 15.09.2023, issued
by the respondent No. 2 (hereinafter to be referred as the 'Detaining
Authority'), whereby the petitioner has been ordered to be detained under
the Public Safety Act, 1978 (for short 'the Act'), on the following
grounds:
(i) That the Detaining Authority has not applied its mind while passing
the order of detention and has mechanically relied upon the dossier
submitted by respondent No. 3, who seems to be unaware as to what
happened to the FIRs (relied upon by the Detaining Authority),
more particularly when the petitioner was enlarged on bail in FIR
No. 77/1999, FIR No. 99/2009 and other FIRs mentioned in the
dossier, though there is a reference to the order of bail dated
20.07.2023 passed by High Court in FIR No. 182/2018 under
sections 120-B, 121, 121-A RPC, 03/13 ULA Act registered with
Police Station, Kishtwar.
(ii) That there is no 'live and proximate' link between the prejudicial
activities of the petitioner and the order of detention. The petitioner
could not have been detained for stale incidents in respect of which
FIRs were registered in the year, 1999, 2009 and 2018.
(iii) It is also urged that the material relied upon by the Detaining
Authority has not been supplied to the petitioner which
incapacitated him to submit an effective representation to the
Government against the order of detention.
(iv) That the grounds of detention are vague, and it is nowhere stated as
to with which banned militant organization, the petitioner is
associated/affiliated.
2. The respondent No. 2/Detaining Authority has filed the counter affidavit
stating therein that the petitioner was involved in FIRs bearing Nos.
77/1999 for offences under sections 117, 124-A RPC of Police Station,
Kishtwar, 99/2019 for offences under sections 457, 380, 395, 120-B RPC
of Police Station, Dachan, Kishtwar and 182/2018 for offences under
sections 120-B, 121, 121-A RPC and 03/13 ULA Act of Police Station,
Kishtwar but the petitioner did not mend his ways and every time after he
got the bail, resumed his anti-national activities. It is further stated that on
receipt of the dossier from the respondent No. 3 in respect of illegal
activities of the petitioner, the Detaining Authority in exercise of powers
conferred under subsection (2) of section 8 of the Act, has issued the order
of detention against the detenue in the interest of the security of the State
(Union Territory). As per the dossier, the petitioner is highly influenced by
the separatists' mind set and remained affiliated with banned organization
Hizbul Mujahideen. He worked as an Over Ground Worker of the above
said banned organization and his activities were highly prejudicial to the
security of the Union Territory. Normal law had not been found to be
sufficient to deter the petitioner from indulging him in anti-national
activities. The order of detention issued by the Detaining Authority has
been approved by the Government vide order No. Home/PB-V/2146 of
2023 dated 19.09.2023 and was subsequently confirmed by the
Government vide order dated 06.10.2023, after obtaining the opinion of
the Advisory Board. It is also averred by the Detaining Authority that the
Daily Diary Report Nos. 25 dated 01.08.2023, 20 dated 07.08.2023, 18
dated 09.08.2023, all of Police Station, Kishtwar and District Special
Branch, Kishtwar report dated 10.08.2023 mentioned that the activities of
the petitioner are prejudicial to the security of the Union Territory. The
order of detention issued by respondent No. 2 dated 15.09.2023 was
executed as per settled principles of law under the Act by PSI Rahul
Sharma. The contents of detention warrant and grounds of detention were
explained to the detenue in the Urdu and Kashmiri languages, which he
fully understood. The grounds of detention along with relevant documents,
total -111 leaves were provided to the petitioner in presence of the
witnesses. In acknowledgement of the receipt of grounds of detention and
other documents, the detenue signed the execution report.
3. Respondent No. 3 has also filed the counter affidavit thereby reiterating
the details of the FIRs registered against the petitioner. It is further stated
that the petitioner was granted bail by High Court on 20.07.2023 in FIR
No. 182/2018 for offences under sections 120-B, 121, 121-A RPC and
03/13 ULA Act of Police Station, Kishtwar. It is further averred that the
petitioner was also arrested in FIR No. 39/2006 under sections 302,
307,120-B RPC, 3 PSSA of P/S Bus Stand Jammu and FIR No. 307/2018
under sections 3 EAO, 3/13/18/39 ULA and he was also sent to JIC
Jammu for interrogation. The respondent No. 3 has further referred to
Daily Diary Reports No. 25 dated 01.08.2023, 20 dated 07.08.2023, 18
dated 09.08.2023 all of Police Station, Kishtwar and the District Special
Branch, Kishtwar report dated 10.08.2023 to substantiate that the
petitioner was still working at the behest of banned militant organization.
4. The petitioner has also filed the rejoinder, stating therein, that the
petitioner was not provided sufficient time to make an effective
representation as the order of detention dated 15.09.2023 was executed on
17.09.2023 and was approved by the Government on 19.09.2023. The
petitioner has also raised the dispute with regard to the execution of the
order of detention by asserting that the respondents have relied upon two
execution reports.
5. Learned counsel for the petitioner has vehemently argued that the
petitioner could not have been detained under preventive custody on stale
incidents, particularly when the respondent No. 2 did not place any
reliance upon the Daily Diary Reports of Police Station, Kishtwar and
District Special Branch Report, Kishtwar, mentioned in the dossier
prepared by the respondent No. 3. He has further argued that the grounds
of detention are vague and on such vague grounds of detention, the
petitioner could not have been detained under preventive custody by the
Detaining Authority. He has further submitted that the mode and manner,
in which the order of detention has been issued and confirmed by the
Government raises suspicion on the part of the respondents.
6. Per contra, learned GA appearing for the respondents has vehemently
argued that the respondents have shown their awareness about the
petitioner being released on bail vide order dated 20.07.2023 passed by the
High Court and further that the material relied upon by the Detaining
Authority was duly provided to the petitioner against proper receipt.
7. Heard and perused the record.
8. It is contended in the rejoinder by the petitioner that the order of detention
was issued on 15.09.2023, approved by the Government on 19.09.2023,
opinion was furnished by Advisory Board on 27.09.2023 and the order of
detention was confirmed on 06.10.2023; meaning thereby that the entire
process right from the issuance of detention order and furnishing of an
opinion by the Advisory Board was completed in 8-9 days and it casts the
doubt and raises suspicion, as it cannot be expected from the detenue to
submit representation within 4-5 days from the date of order of detention.
This ground was never raised in the memo of petition but in the rejoinder
to the counter affidavit and was vociferously argued by the learned
counsel for the petitioner. In terms of section 13(1) of the Act, the
detaining authority is under statutory obligation to communicate to the
detenu the grounds on which the order of detention has been made within,
ordinarily not beyond the period of five days and in exceptional
circumstances not later than ten days from the date of issuance of order of
detention for the reasons to be recorded in writing and to afford him the
earliest opportunity of making representation against the order to the
Government. In the instant case, the order of detention was issued on
15.09.2023, and the grounds of detention were communicated to the
petitioner on 17.09.2023 i.e. within the time limit under the Act. It is
mentionable here that the petitioner was informed of his right to make
representation to the Government as well as to the Detaining Authority,
but the petitioner never submitted any representation. In terms of section-
8 (4) of the Act, the life of order of detention is twelve days unless in the
meanwhile it is approved by the Government. In this case, the order of
detention was approved by the Government on 19.09.2023 pursuant to the
communication dated 15.09.2023 to the Government i.e. within the time
limit provided in the Act. In terms of section-15 of the Act, the statutory
obligation is cast upon the Government to place before the Advisory
Board with in four weeks from the date order of detention, the grounds of
detention, the representation, if any, made by the person affected by the
order of detention. Further, section-16 of the Act enjoins upon the
Advisory Board to submit its report to the Government within six weeks
from the date of detention. In this case, the opinion of Advisory Board was
sought and Advisory Biard vide its opinion dated 27.09.2023 opined that
there was sufficient cause for detention of the petitioner. The time limits
prescribed under the Act have been strictly followed in the instant case
and merely approval of the order of detention by the Government on
19.09.2023, did not preclude the petitioner to make representation against
his detention. The order of detention cannot be quashed on this ground.
9. It is also contended by the petitioner that he has been detained on the
vague grounds and stale incidents. This is settled position of law that the
grounds of detention must have live and proximate link with the order of
detention. A perusal of the dossier reveals that respondent No. 3 has
mentioned the involvement of the petitioner in the following FIRs:
(i) FIR No. 77/1999 for offences under sections 117, 124-A RPC of
Police Station, Kishtwar, in respect of sale of incriminating books.
(ii) FIR No. 99/2019 for offences under sections 457, 380, 395, 120-B
RPC of Police Station, Dachan, Kishtwar in respect of burglary case
in which the public money for an amount of Rs. 1,06,48,000/- was
stolen from the J&K Bank Branch, Kishtwar.
(iii) FIR No. 182/2018 for offences under sections 120-B, 121, 121-A
RPC and 03/13 ULA Act of Police Station, Kishtwar in respect of
recovery of arms and ammunition from one militant of H. M. Outfit
and one OGW. Later, the petitioner was also found to be involved.
10 Besides these three FIRs, references have also been made in respect of
Daily Diary Reports No. 25 dated 01.08.2023, 20 dated 07.08.2023, 18
dated 09.08.2023 all are of Police Station, Kishtwar and District Special
Branch, Kishtwar report dated 10.08.2023.
11 This is admitted case of the parties that the petitioner was granted bail by
High Court on 20.07.2023. In Daily Diary reports dated 01.08.2023 and
07.08.2023, it has been mentioned that close watch is being maintained
over the activities of the petitioner and in the event, the petitioner is found
to be involved in subversive activities, action under law would be taken
against him. In Daily Diary Report dated 09.08.2023, it is mentioned that
it is surfaced that the petitioner is still provoking the youths of Kishtwar
and its adjoining areas to join banned terrorist organisation, in order to
hurt the sovereignty and integrity of Nation and UT of J&K. In the report
dated 10.08.2023, prepared by the District Police Branch, it is mentioned
that on 22.07.2023, the petitioner was granted bail by the High Court and
since then he is present at the home and further that it has been secretly
learnt that the subject is in contact of youths and is still working at the
behest of banned militant organisation. It is strange as till 07.08.2023, the
petitioner was not found to have been involved in any illegal activity as is
evident from the DDR dated 07.08.2023. Suddenly in the DDR dated
09.08.2023 it has been mentioned that he is still provoking the youths of
Kishtwar to join banned outfit of terrorist organisation. In the report dated
10.08.2023, prepared by the District Special Branch, it is mentioned that
since release of the petitioner on 22.07.2023, he is at home, and it is not
forthcoming as to in which activities the petitioner has indulged himself
in. The mode and manner, in which the DDR dated 09.08.2023 and report
of DSB dated 10.08.2023 are prepared in quick succession leaves no doubt
that the same were prepared to detain the petitioner only when he was
released on bail by High Court. The report dated 09.08.2023 is silent as to
the particulars of the youths, who were provoked by the petitioner to join
the banned organisation. The DSB report is even not divulging the illegal
activities of the petitioner. Further, the grounds of detention reveal that it
has been mentioned by the Detaining Authority that the petitioner has
provided food, shelter to the militant organisation and has shared vital
information with the militant organisation but there are no such allegations
against the petitioner either in the Dossier or even the DDR and DSB
report. It clearly reflects the non-application of mind on the part of the
detaining Authority while issuing the order of detention and as such, the
order of detention is not sustainable in the eyes of law.
12 In view of what has been stated above, the order of detention bearing No.
07th/DM/K/PSA of 2023 dated 15.09.2023, issued by the respondent No. 2
is quashed. The petitioner be released forthwith, if not required in any
other case.
13 Record be returned to the learned G.A.
(RAJNESH OSWAL)
JUDGE
Jammu:
09.10.2024
Rakesh PS
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
