Jammu & Kashmir High Court

Syed Shabir Ahmed Shah vs Ut Of J&K And Others on 16 October, 2024

Author: Sindhu Sharma

Bench: Sindhu Sharma

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT JAMMU

                                                             HCP No. 28/2024

                                               Pronounced on:       16.10.2024


Syed Shabir Ahmed Shah                              .... Petitioner/Appellant(s)

                         Through:-    Mr. R.K.S. Thakur, Advocate.

                   V/s

UT of J&K and others                                         .....Respondent(s)

                         Through:-    Mr. Rajesh Thapa, AAG.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                  JUDGMENT

01. The petitioner has challenged the detention order No. PSA 28 of 2023

dated 15.11.2023, issued by the District Magistrate, Jammu, placing him

under detention with a view to prevent him from acting in any manner

prejudicial to the maintenance of public order. The order of detention has been

challenged by the petitioner through his wife-Mst. Nazneena Akhtar.

02. The contention of the petitioner is that the impugned order of

detention has been passed without any application of mind, as the

allegations made in the grounds of detention have no nexus with the

petitioner, as the same have been made in order to justify the illegal

detention of the petitioner. The petitioner was earlier detained in

pursuance of detention order No. 7/PSA of 2016, dated 24.05.2016 based

on a dossier submitted by respondent No. 3. All five complaints

mentioned in the detention order dated 15.11.2023 were also part of the

earlier detention order, however, the respondents relied on the same

complaints while issuing the impugned detention order dated 15.11.2023.

The grounds of detention are verbatim of the dossier submitted by SSP,

Jammu, and the detention order has been passed without any subjective

satisfaction of the Detaining Authority. The Detaining Authority has also

not considered the fact that the detention is on the basis of FIRs relied

upon by them in which charge-sheet has been presented and the petitioner

has been granted bail. This fact has neither been noticed nor any

compelling reasons were recorded while passing the order of detention.

All the material relied upon by the Detaining Authority has not been

supplied to the petitioner, infringing upon his right to make a

representation. The petitioner was not informed about his right to make a

representation either to the Detaining Authority or the Government, which

has resulted in infraction of his valuable rights. There is no live and

proximate link between the alleged prejudicial activities and the detention

order, therefore, the detention is unsustainable.

03. The respondents have contested the petition by filing counter

affidavit and record has also been produced by them.

04. The respondents submit that there are four FIRs registered against

the petitioner, i.e., (i) FIR No. 88/2015 u/s 447-A/336 registered at Police

Station, Bagh-e-Bahu, Jammu; (ii) FIR No. 103/2015 u/s 447-A,

registered at Police Station, Bagh-e-Bahu, Jammu; (iii) FIR No. 63/2019

u/s 451/323/506/34 RPC, registered at Police Station, Peermitha, Jammu

and; (iv) FIR No. 62/2023 u/s 452/506 IPC, registered at Police Station,

Peermitha, Jammu. This apart, five complaints have also been registered

against the petitioner, i.e., (i) Complaint u/s 107/151 CrPC at Police

Station, Kulgam; (ii) Complaint u/s 186 RPC at Police Station, Peermitha;

(iii) Complaint u/s 107/117(3) CrPC at Police Station, Peermitha; (iv)

Complaint u/s 107/117(3) CrPC at Police Station, Peermitha and; (v)

DDR No. 25 dated 17.11.2011 at Police Station, Peermitha. It is submitted

that these FIRs and complaints registered against the petitioner were

stated in the dossier submitted by the Sr. Superintendent of Police, Jammu

and after considering all the material on record, the Detaining Authority

arrived at a subjective satisfaction and passed the order of detention.

05. It is further submitted by the respondents that the petitioner poses a

threat to public order, peace, and stability due to his involvement in

numerous criminal activities. It was improbable that he will refrain from

such activities, which adversely affect the maintenance of public order,

therefore, his detention was deemed necessary under the provisions of

J&K Public Safety Act. All the statutory requirements and constitutional

guarantees have been fulfilled and complied with by the Detaining

Authority. The impugned order issued is legal and valid and that the

grounds urged by the petitioner in this petition are misconceived and

untenable being without any merit.

06. Heard learned counsel for the parties and perused the record.

07. Petitioner was detained in terms of detention order No. PSA 28 of

2023, dated 15.11.2023. As per the grounds of detention, the petitioner has

been considered to be involved in four FIRs, i.e., (i) FIR No. 88/2015 u/s 447-

A/336 registered at Police Station, Bagh-e-Bahu, Jammu; (ii) FIR No.

103/2015 u/s 447-A, registered at Police Station, Bagh-e-Bahu, Jammu; (iii)

FIR No. 63/2019 u/s 451/323/506/34 RPC, registered at Police Station,

Peermitha, Jammu and; (iv) FIR No. 62/2023 u/s 452/506 IPC, registered at

Police Station, Peermitha, Jammu. This apart, five complaints have also been

registered against the petitioner, i.e., (i) Complaint u/s 107/151 CrPC at Police

Station, Kulgam; (ii) Complaint u/s 186 RPC at Police Station, Peermitha; (iii)

Complaint u/s 107/117(3) CrPC at Police Station, Peermitha; (iv) Complaint

u/s 107/117(3) CrPC at Police Station, Peermitha and; (v) DDR No. 25 dated

17.11.2011 at Police Station, Peermitha.

08. The detention of the petitioner was ordered on the basis of these FIRs

and complaints which were registered against him from the year 2011 to

2023. FIR Nos. 88 and 103 have been registered in the year 2015, FIR No.

63 in the year 2019 and FIR No. 62 in the year 2023. In FIR No. 88/2015,

Ajay Singh reported that the petitioner trespassed on government land,

dumped construction materials, and threatened locals who objected. In

FIR No. 103/2015 Inspector Khilafwarzi Zone B, JDA, reported of an

illegal trespassing and damage to government property by the petitioner.

In FIR No. 63/2019, Smt. Rukshana Anis stated she was threatened and

assaulted by petitioner and others when they chased her and entered her

home. Lastly, FIR No. 62/2023 was filed by Roof Ahmed, who accused

petitioner of illegally entering his hotel, attempting to snatch his phone,

and issuing threats.

09. The detention of the petitioner was based on four FIRs, three complaints,

and one DDR. There is a total non-application of mind by the Detaining

Authority, as it has not shown any awareness to the fact that in the complaint

under Section 186 RPC registered at Police Station Kulgam, the petitioner was

acquitted and the other two complaints, under Sections 107/117(3) CrPC,

registered at Police Station Peermitha, were consigned to the records on

28.05.2012 and 13.10.2010, respectively. This apart, the petitioner was

granted bail in all the aforementioned FIRs, yet the Detaining Authority has

not shown any awareness of this fact or whether charges have been framed.

This shows total non-application of mind by the Detaining Authority while

passing the order of detention.

10. The Hon'ble Apex Court in 'Rishikesh Tanaji Bhoite vs. State of

Maharashtra and others', (2012) 2 SCC 72, observed as under:

"9. In a case where detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction.

10. In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority."

11. The Detaining Authority without showing any awareness to the fact of

grant of bail as well as acquittal order has passed the order of

detention, which has vitiated the order of detention passed by the

Detaining Authority and has rendered the detention unsustainable.

12. In view of the aforementioned facts and circumstances, the detention

of the petitioner is unsustainable, therefore, without adverting to the

other grounds raised in this petition, this petition is disposed of and the

impugned detention Order No. PSA 28 of 2023 dated 15.11.2023, passed

by the District Magistrate, Jammu, detaining the petitioner-Syed

Shabir Ahmed Shah alias Shabir Billu, S/o Late Syed Mohd. Abdullah

Shah, R/o House No. 256, Mohalla Dalpathian, Jammu, is quashed.

The respondents are directed to release the petitioner from the custody