WP(Crl) No. 153/2023 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … WP(Crl) No. 153/2023 Reserved on:26.12.2024 Pronounced on:20. 01.2025 Abdul Ahad Bhat, Aged 52 years S/o Abdul Khaliq Bhat R/o Larkipora Tehsil Awantipora, District Pulwama through his son Saqlain Ahad ……...Petitioner(s) Through: Mr. M. Ayoub Bhat, Advocate Versus 1. UTof Jammu and Kashmir through Principal Secretary to Government, Home Department J&K, Government, Civil Secretariat, Srinagar/Jammu. 2. District Magistrate, Pulwama 3. Superintendent Central Jail, Kotbhalwal, Jammu ……Respondent(s) Through: Mr. Hakim Aman Ali, Dy. AG CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1. Challenge is madein the instant petition, by the son of the detenue, to the detention order No. DMP/PSA/23/11 dated 31.03.2023, for short “impugned order”, issued by District Magistrate, Pulwama-respondent No.2 herein, whereby one Abdul Ahad Bhat Son of Late Abdul Khaliq Bhat Resident of Larkipora Tehsil Awantipora, District Pulwama,herein after referred to as “detenue”has been placed under preventive detention, on the grounds taken in the memo of petition. BRIEF FACTS WP(Crl) No. 153/2023 2. Precisely, the case of the petitioner is that the detenue has been arrested by the respondents on vague, irrelevant and non-existing grounds. The detenue is stated to be an innocent peace-loving citizen who has been falsely detained under preventive detention without any allegations against him warranting exercise of such power. Furthermore, the detenue has not been proceeded against through substantive law and nothing is being said as to why and how the substantive laws would not have been effective against the detenue if at all there was anything against him. The detenue inter alia challenges the impugned detention order on the grounds that he has not been furnished all the material which has been relied upon by the detaining authority in making the detention order. The grounds of detention make mention of several activities of the detenue, which are allegedly prejudicial to the Security of the State, but no supporting documents/materials regarding such alleged illegal activities of the detenue have been provided to the detenue for making an effective representation against his detention;the detenue is an illiterate farmer as such, cannot be expected to understand the contents of the impugned order and grounds of detention which are couched in hyper technical English/legal language, which prevented the detenue to file an effective representation against his detention; the son of the detenue had filed a representation against the order of detention before the respondents on 10.04.2023, but the same was not considered by the detaining authority; the subjective satisfaction has not been derived by the detaining authority itself which is a sine qua non for passing the order of detention. The grounds of detention have been virtually formulated by the concerned SSP as the dossier submitted by the SSP is the verbatim copy of the grounds of detention. The respondent No. 2 in derogation of law, has not applied his own mind as to whether the detention order was required to be passed against the detenue; the detenue has been denied to make a representation WP(Crl) No. 153/2023 to the detaining authority within the prescribed time limit. The detenue has not been informed about the time period for making a representation. 3. Per contra, it is stated by the respondents in their counter affidavit thatthe activities of the detenue have been found prejudicial to the Security of the State, as such, the Police recommended his preventive detention and in this behalf submitted dossier supported by relevant material to the District Magistrate whereafter the record/material was examined and after finding the preventive detention of the detenue necessary, the order of detention was passed with the sole aim and object to deter the detenue from acting in any manner which is prejudicial to the Security of the State. The detenue was informed about his right to make a representation against his detention and the one filed by his wife was rejected on 19.04.2023, the grounds of detention additionally make a mention that the detenue used to provide logistic support to the militants and there was a likelihood that the detenue would have joined the militant ranks. 4. Heard learned counsel for the parties and considered the submissions made and perused the detention record. 5. The perusal of the material placed on record would reveal that the respondents have not effectively controverted the pleas raised by the detenue in his petition. The petitioner in his petition has taken as many as 14 grounds to question and challenge the veracity of the detention order, however, the respondents in their counter affidavit have only replied a few of such grounds. 6. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22 (5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the WP(Crl) No. 153/2023 detention order is based, is supplied to detenue. It is only after the detenue has the entire material available, that he can make an effort to convince the Detaining Authority and thereafter Government that their apprehensions, as regards his activities, are baseless and misplaced. The learned counsel for the detenue while making submissions had submitted that the detenue was not provided the material, therefore, he could not file an effective representation against his detention, which is controverted by the respondents by deriving support from execution report forming part of detention record demonstrating that the detenue has been provided as many as 14 leaves comprising detention order 01 leaf, notice of detention 01 leaf, grounds of detention 02 leaves, dossier of detention 04 leaves, copies of FIR, statement of witnesses and other related relevant documents 06 leaves. The detention record, as stated hereinbefore, makes mention of six leaves comprising of copy of FIR and statement of witnesses having been provided to the detenue, however, there is nothing on record to suggest that the detenue was involved in any criminal case for which an FIR has been lodged, investigation commenced and statement of witnesses recorded nor has any such assertion been taken by the respondents. The execution report,forming part of detention record, to such extent, thus, appears to be just a camouflage to escape the rigours of law. The entire document “execution report” in essence, pales into insignificance besides putting under cloud the veracity of the rest of the detention record. In that view of the matter, the plea of the petitioner that detenue was not provided the entire documents forming basis for his detention, cannot be brushed aside and this Court has no reason to disbelieve the contention that the detenue has been deprived of his right of making an effective representation to the detaining authority for having not been provided the WP(Crl) No. 153/2023 entire documents. While holding so, I draw support from TahiraHaris etc. etc. Vs. Government of Karnataka, reported as AIR 2009 SC 2184. 7. Another aspect of the matter is that the son of the detenue is on record of having submitted a representation on 12.05.2023 to the detaining authority, as would the receipt,dated 20.05.2023, placed on record show, which does not appear to have been considered and decided as there is nothing available on the file to suggest so. The respondents have not rebutted such claim of the petitioner; however, they have referred to a representation dated 10.04.2023 purportedly submitted by the wife of the detenue which has been rejected in terms of order dated 19.04.2023. The representations preferred by the wife and the son of the detenue have been moved after the detention order was approved by the Government on 05.04.2023, which implies that the detenue has been deprived of his right of making a representation against his detention before the detention order was approved by the Government, for, having not been informed to do so. It has consistently been held by the Courts of law that violation of any of the constitutional rightsof the detenue,by the detaining authority,puts under cloud the whole detention order. Reliance in this behalf is placed on the Judgment of Supreme Court titled as Sarabjeet Singh Mokha Vs. The District Magistrate, Jabalpur &Ors., reported as2021 SCC online SC 1019.Para 46 being relevant is taken note of:- “46 By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu “as soon as may be” and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government to not deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to WP(Crl) No. 153/2023 understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA. The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.” 8. Furthermore, the court is not convinced to accept the plea of the respondents that detenue was not showing the signs of remorse after having been bound down under Section 107 Cr.PC read with Section 151 Cr. PC, as there is nothing on record in support of such contention. The respondents cannot be expected to take recourse to hollow assertions only, as they wereobliged, by law, to see that the detenue has indeed indulged in the similar activities for which he was bound down and there was a reasonable prognosis about his future conduct, in light of the well-articulated circumstances,that similar activities would likely be repeated by the detenue. The Supreme Court in the case of Sama Aruna v. State of Telengana and &anr. (2018) 12 SCC 150, while holding that the incidents which are said to have taken place long back, cannot form basis for being satisfied that the detenue is going to engage in similar activities, observed as under: "17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it." From the aforesaid enunciation of the law on the subject, it is clear that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the maintenance of security of the state. In the instant case, the said link is completely missing as the time between the order of detention and the incidents referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained.” 9. Viewed thus, the petition is allowed and detention order No.DMP/PSA/23/11 dated 31.03.2023 of District Magistrate, Pulwama- WP(Crl) No. 153/2023 respondent No.2 herein, whereby one Abdul Ahad Bhat Son of Late Abdul Khaliq Bhat Resident of Larkipora Tehsil Awantipora, District Pulwamawas detained, is quashed and the respondents are directed to release the detenue forthwith, if not required in any other case. 10. Detention record be returned to the learned counsel for the respondents against receipt. 11. Disposed of. (MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 20.01.2025 “Mohammad Yasin Dar” Whether the Judgment is reportable: Yes/No. Whether the Judgment is speaking: Yes/No.