1 HCP no.29/2024 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP no.29/2024 Reserved on 20.02.2025 Pronounced on: 24.02.2025 Showkat Ahmad Ganie aged 31 years S/o Late Mohammad Kamal Ganie R/o Sheikhpora Wathora Tehsil Chadoora District ……. Petitioner(s) Through: Mr. Wajid Haseeb, Advocate Versus 1. UT of J&K through Addl Chief Secy., Home Deptt. J&K Govt. Civil SEcttt Sgr./Jmu. 2. District Magistrate, Budgam .…Respondent(s) Through: Mr. Jahingeer Ahmad Dar, GA CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Through the medium of this petition, the petitioner seeks quashment of Order no.DMB/PSA/01 of 2024 dated 01.01.2024, passed by District Magistrate, Budgam– respondent no.2, whereby detenu, namely, Showkat Ahmad Ganie @ Naaz S/o Late Mohammad Kamal Ganie R/o Sheikhpora Wathoora Tehsil Chadoora District Budgam, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to security of the State, precisely on the grounds that there is no live link between the last activity and the impugned order of detention inasmuch as in the FIR no.116/2022 P/S Chadoora, detenu was already discharged, but this important fact has not been reflected in grounds of detention and besides that detenu was already admitted to bail in the cases mentioned in grounds of detention but this important fact has not been mentioned in grounds of detention. 2. Respondents have filed the reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of the State. The 2 HCP no.29/2024 activities narrated in the grounds of detention have been reiterated in the reply/counter affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 3. I have heard learned counsel for parties. I have gone through the detention record attached with the file and considered the matter. 4. The case set up by the petitioner in the petition is that the detenu was arrested in connection with case FIR No.116/2022 in the year 2022. He was put to trial and by order dated 04.10.2023, passed by Additional Sessions Judge, Budgam, detenu was discharged of offences and released from custody. Detenu was once again called to police station Chadoora in the month of January 2024, where he was detained and thereafter shifted to Central Jail, Kotebhalwal, Jammu, to be detained under and in terms of impugned order of detention. 5. The detaining authority is stated to have relied upon various FIRs, without mentioning in grounds of detention that detenu has been admitted to bail in those cases. The last 6. The question whether the prejudicial activities of a person requiring to pass a detention order is proximate to time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped, depends on the facts and circumstances of each case. Nonetheless, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case. Certainly, in the present case, there is no cogent explanation coming to fore from perusal of the grounds of detention with reference to the live-link between the prejudicial activities and the purpose of the detention and resultantly the impugned detention order is liable to be quashed. In this regard reference is made to the law laid down in T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajinder Arora v. Union of India and others (2006) 4 SCC 796]. 3 HCP no.29/2024 7. Perusal of grounds of detention reveals that same are vague and ambiguous, and do not refer to any date, month or year of the activities, which have been attributed to detenu. Detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified. It may not be out of place to mention here that preventive detention is largely precautionary and is based on suspicion. The Court is ill-equipped to investigate into circumstances of suspicion on which such anticipatory action must be largely based. The nature of the proceeding is incapable of objective assessment. The matters to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of surrounding circumstances and other relevant material, is likely to act in a prejudicial manner as contemplated by the provisions of the law and, if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not the matters susceptible of objective determination, and they could not have been intended to be judged by objective standards. They are essentially the matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the Legislature to the subjective satisfaction of detaining authority which, by reason of its special position, experience and expertise, would be best suited to decide them. Thus, the Constitutional imperatives of Article 22(5) and the dual obligation imposed on the authority making the order of preventive detention, are twofold: (1) The detaining authority must, as soon as may be, i.e. as soon as practicable, after the detention order is passed, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention, i.e. to be furnished with sufficient particulars to enable him to make a representation which, on being considered, may obtain relief to him. The inclusion of an irrelevant or non-existent ground, among other relevant grounds, is an infringement of the first of the rights and the inclusion of an obscure or vague ground, among other clear and definite grounds, is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenu entitling him to approach the Court for relief. The reason why the inclusion of even a simple irrelevant or obscure ground, among several relevant and clear grounds, is an invasion of the detenu’s constitutional right is that the Court is precluded from adjudicating 4 HCP no.29/2024 upon the sufficiency of the grounds, and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. Even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is non-existent or misconceived or irrelevant, the order of detention would be invalid. Where the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague or irrelevant the entire order must fall. The satisfaction of detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention. Irrelevant grounds, being taken into consideration for making the order of detention, are sufficient to vitiate it. One irrelevant ground is sufficient to vitiate the order as it is not possible to assess, in what manner and to what extent, that irrelevant ground operated on the mind of the appropriate authority, and contributed to his satisfaction that it was necessary to detain the detenu in order to prevent him from committing any act/illegal activity coming within the purview of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act or for that matter any prejudicial activity. Reference in this regard is made to Mohd. Yousuf Rather v. State of J&K and others, AIR 1979 SC 1925; and Mohd. Yaqoob v. State of J&K and others, 2008 (2) JKJ 255 [HC]. 8. Grounds of detention reveal that the detenu was involved in a cases FIR Nos.226/2012, 448/2013, 38/2017, 116/2022. Involvement of the detenu in these cases appears to have heavily weighed with the detaining authority to pass detention order. 9. The thrust of submission of counsel appearing for petitioner is that detaining authority has passed impugned order of detention without application of mind and in a mechanical manner. In order to substantiate his submission, he has brought to the notice of this Court the factum of bail having been granted by court of law in all the FIRs and thereafter acquittal of detenu from one of the cases viz. FIR no.116/2022. 10. The law on the subject is settled. If detaining authority is apprehensive that in case detenu is released on bail he may again carry on his criminal activities, then in such situation, the authority should oppose the bail application and, in the event, bail is granted, the authority should challenge such a bail order in the higher forum and that merely on the ground that an accused in detention is likely 5 HCP no.29/2024 to get bail, an order of preventive detention should not ordinarily be passed. Para 24 of judgement passed in Sama Aruna v. State of Telangana and another, AIR 2017 SC 2662, reads as under: “24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav V. District Magistrate, Etah and Ors., this court observed as follows: “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the Nation Security Act should not ordinarily be passed.” 11. It may be mentioned here that delay in passing impugned order of detention from the date of proposal snaps the “live and proximate link” between prejudicial activities and purpose of detention and failure on the part of detaining authority in explaining such delay in any manner vitiates detention. If detaining authority remains oblivious of the fact that in the criminal case(s) relied upon by it for purpose of passing order of detention the detenu was ordered to be released on bail by the court or discharged/acquitted by the court of law and do not make any whisper about such fact in grounds of detention, such omission and non-mention of the important fact again vitiates the order of detention. 12. The Supreme Court in Asha Devi v. Additional Chief Secretary to the Government of Gujarat and Anr., 1979 Crl LJ 203, pointed out that: “... if material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal.” 13. In Sk. Nizamuddin v. State of West Bengal, (1975) 3 SCC 395, the Supreme Court observed as under: “We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. The circumstance might quite possible have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may 6 HCP no.29/2024 in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate.” 14. From the above decisions, it emerges that the requisite subjective satisfaction, the formation whereof is a condition precedent in passing a detention order will get vitiated if material or vital facts having bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind, are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. 15. When in the present case, grounds of detention are analyzed, it would nowhere mention whether detenu was after his apprehension in connection with case FIR no.116/2022, released on bail and/or thereafter acquitted from the said case, which reflects and depicts non-application of mind on the part of detaining authority. Thus, there is no compelling reason coming forth from grounds of detention to show that detenu was likely to be released from custody in near future and taking into account the nature of antecedent activities of detenu, it was likely that after his release from custody he may indulge in prejudicial activities and it was necessary to detain him in order to prevent him from engaging in such activities. As a result whereof, impugned order is vitiated and requires to be quashed, as such. 16. For the reasons discussed above, the petition is disposed of and detention Order no.DMB/PSA/01 of 2024 dated 01.01.2024, passed by District Magistrate, Budgam, is quashed. The respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of. 17. Record be returned to counsel for respondents. (Vinod Chatterji Koul) Judge Srinagar 24.02.2025 (Qazi Amjad, Secy) Whether the order is reportable: Yes/No.