HCP No.133/2024 IN THE HIGH COURT OF JAMMU &KASHMIR AND LADAKHAT SRINAGAR Reserved on:21.02.2025 Pronounced on: 24.03.2025 HCP No.133/2024 KHURSHEED AHMAD WAZA ...PETITIONER(S) Through: - Mr. Wajid Haseeb, Advocate. vs. UT OF J&K & ORS. …RESPONDENT(S) Through: - Mr. Syed Musaib, Advocate. CORAM:HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The petitioner has challenged detention order No.13/DMB/PSA/2024 dated 04.04.2024, issued by District Magistrate,Baramulla (for brevity “detaining authority”) has been challenged. In terms of the aforesaid order, Khursheed Ahmad Waza(for short “detenue”) has been placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security of the UT of J&K. 2) The petitioner has contended that the Detaining Authority has passed the impugned detention order without application of mind as the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been contended that the grounds of detention are vague, non-existent on which no prudent man can make a representation against such allegations. It has HCPNo.133/2024 been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material that formed basis of the impugned detention order has not been supplied to the petitioner. It has also been contended that the representation filed by the petitioner against the impugned order of detention has not been considered. 3) The respondents have resisted the petition by filing a reply affidavit, whereinthey have contended that the activities of detenue are highly prejudicial to the security of the State.It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. That the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. It has been further contended that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority. That the order has been issued validly and legally. The respondents besides other, have placed reliance on the judgment of the Supreme Court in Hardhan Saha v. State of W.B (1975) 3 SCC 198. The respondents have also produced the detention record to lend support to the stand taken in the counter affidavit. 4) I have heard learned counsel for parties and perused the record. HCPNo.133/2024 5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the following grounds: (I) That the detenue was not furnished whole of the material which formed the basis of the grounds of detention to enable him to make an effective representation against his detention (II) That the impugned order of detention is based upon stale incidents having no proximate link to the activities alleged to be prejudicial to the maintenance of security of the State. (III) That the representation filed by the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights. 6) So far as the first ground urged by the learned counsel for the petitioner is concerned, a perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 06.04.2024. Report of the Executing Officer in this regard forms part of the detention record, a perusal whereof reveals that it bears the signature of the petitioner and according to it, in total (11) leaves, have been supplied to him. What were these 11 leaves, has not been explained by the respondents. 7) If we have a look at the grounds of detention, it bears reference to as many as three FIRs viz. FIR Nos.187/2015, 169/2016 and 197/2016 registered with P/S Pattan. It was incumbent upon the respondents to furnish not only copies of the FIRs but also the statements of witnesses recorded during investigation of the said FIRs and other material on the HCPNo.133/2024 basis of which petitioner’s involvement therein is shown. All this material along with other material like copy of warrant of detention, notice of detention and dossier of detention would run into dozens of pages. It is impossible that all this material would be covered only in three leaves. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 8) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Gulam Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. vs. Government of Karnataka & Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar HCPNo.133/2024 Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam vs. State of Gujarat and others” (1982) 3 SCC 440. 9) Next it has been contended by learned counsel for the petitioner that the impugned order of detention has been passed on the basis of stale incidents having no proximate link with the activities alleged to be prejudicial to the maintenance of security of the State. 10) A perusal of the grounds of detention reveals that the incidents referred therein pertain to the years 2015 and 2016, that is more than eight and seven years prior to the passing of impugned order of detention. In the grounds of detention, there is no reference to any recent incident showing involvement of the petitioner except for vague assertions. Thus, it is clear that the order of detention has been based on past and stale incidents. 11) 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 HCPNo.133/2024 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 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. 12) Next it has been contended by learned counsel for the petitioner that the representation filed by the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional. 13) A perusal of the detention record reveals that the representation of the petitioner dated 16.04.2024 has been rejected by the government and an intimation in this regard has been communicated by Deputy Secretary to Government, Home Department, to the District Magistrate, Anantnag in terms of communication No.Home/PB-V/181/2024(7452460)dated 02.09.2024 In the said communication, the respondents have admitted receipt of the representation of the petitioner. Thus, it is admitted by the respondents that they have received the representation of the petitioner against the impugned order of detention. The representation has been HCPNo.133/2024 received by the respondents probably in the second week of May, 2024, which is clear from communication dated 09.05.2024, addressed by the District Magistrate, Anantnag to the Principal Secretary to Government, Home Department, that forms part of the detention record. The question that arises for determination is, as to whether consideration of representation after a period of more than three months from the date of receipt of the same satisfies the requirement of law. 14) The aforesaid question has been answered by the Supreme Court in the case of “Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others”(2021) 20 SCC 98. It would be apt to refer to observations made by the Supreme Court in para 47 of the judgment, which are reproduced as under:- “47. 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 not to 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 Governments in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to 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.” 15) From the foregoing analysis of law on the subject, it is manifest that delaying of decision on the representation of the detenue amounts to HCPNo.133/2024 an infringement of a valuable right which is available to a detenue in terms of provisions contained in Section 13 of the Jammu & Kashmir Public Safety Act, which makes it obligatory on the detaining authority to communicate to the detenue the grounds on which the order of detention has been made within a maximum period of ten days from the date of detention and to afford him the earliest opportunity of making representation against the order of detention. The purpose of furnishing the grounds of detention within a maximum period of ten days is to enable a detenue to make a representation against the order of detention at the earliest opportunity. Thus, a duty is cast upon the detaining authority or the government to consider the said representation at the earliest opportunity. Failure to decide the representation of a detenue within a reasonable time in an expeditious manner strikes at the valuable right of a detenue emanating from the provisions of Section 13 of the Jammu & Kashmir Public Safety Act. 16) In the present case, the respondents have received the representation of the petitioner in the third week of May, 2024 but the same has been decided by them on 02.09.2024. This slackness on the part of respondents to take a decision on the representation of the petitioner renders the impugned order of detention illegal. 17) Apart from the above, in the present case, the respondents have not placed on record anything to show that the order of rejection of representation was conveyed to the petitioner. The communication HCPNo.133/2024 dated 02.09.2024 is an inter-departmental communication between Home Department and District Magistrate, Anantnag. It is not forthcoming from the record produced by the respondents as to whether the result of the representation has been conveyed to the petitioner. The Supreme Court in Sarabjeet Singh Mokha’s case (supra) while dealing with the effect of failure to communicate the result of the representation has held that failure in timely communication of the rejection of the representation is a relevant factor for determining the delay that the detenue is protected under Article 22(5). It has been further held that failure of the government to communicate rejection of detenue’s representation in a time bound manner is sufficient to vitiate the detention order. 18) For the foregoing reasons, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 19) The detention record be returned to the learned counsel for the respondents. (Sanjay Dhar) Judge SRINAGAR 24.03.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 24.03.2025 21:58