WP(Crl) No.162/2023 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 13.02.2025 Pronounced on:21.02.2025 WP(Crl) No.162/2023 MOIN MATOO ...Petitioner(s) Through: -Mr. T. Khawaja, Advocate. Vs. UT OF J&K & OTHERS …Respondent(s) Through: -Mr. Zahid Qais Noor, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. JUDGMENT 1) The petitioner, through the medium of present petition, has sought a Writ of Habeas Corpus for quashing the detention order bearing No.DMS/PSA/25/2023 dated 12.04.2023, passed by District Magistrate, Srinagar (the detaining authority) with a view to prevent him from acting in any manner prejudicial to the security of the State. The order is, purportedly, passed by the detaining authority in exercise of powers conferred under Section 8 of the J&K Public Safety Act, 1978 (the Act of 1978). 2) The impugned order has been assailed by the petitioner, inter alia, on the following grounds: (I) That whole of the material on the basis of which impugned detention order has been passed has not been supplied to the detenue thereby disabling him from making 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 WP(Crl) No.162/2023 alleged to be prejudicial to the maintenance of security of the State. (III) That there has been non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.51/2017 registered with P/S Nowhatta, but this fact has not been mentioned in the grounds of detention. 3) On being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein besides other contentions, it is submitted that detention was necessitated because of involvement of the detenue in very serious offences against the State as mentioned in the FIRs registered against him. The detenue was informed that he can make a representation to the government as well as the to detaining authority against his detention. It is further contended that all statutory requirements and constitutional imperatives have been fulfilled and complied with by the detaining authority. That the order has been issued validly and legally. The respondents have placed reliance on various judgments of the Supreme Court including Haradhan Saha v. State of W.B (1975) 3 SCC 198. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4) I have heard learned counsel for the parties and perused the material available on record. 5) 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 26.04.2023. Report of the WP(Crl) No.162/2023 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, copy of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other related relevant documents (03 leaves), total 08 leaves, have been supplied to him. 6) If we have a look at the grounds of detention, it bears reference to as many as three FIRs viz. FIR Nos.51/2017, FIR No.52/2017 of P/S Nowhatta and 19/2019 registered at P/S Rainawari. 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 basis of which petitioner’s involvement therein is shown. All this material would run in dozens of pages and it is impossible that all this material would be covered in only 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. Even the copy of the dossier of detention has not been supplied to the petitioner. 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. WP(Crl) No.162/2023 7) 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 Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440. 8) 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. 9) A perusal of the grounds of detention reveals that the incidents referred therein pertain to the years 2017 and 2019, that is more than six and four years prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus, it is clear that the order of detention has been based on past and stale incidents. 10) 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 WP(Crl) No.162/2023 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 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. 11) From a perusal of the material available on file, the ground regarding non-application of mind on the part of the detaining authority appears to be forceful, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had already been admitted to bail in FIR No.51/2017 registered with P/S Nowhatta in terms of the order passed by the court of competent jurisdiction. The petitioner has placed WP(Crl) No.162/2023 on record a copy of order dated 11.04.2022 passed by the Court of learned Additional Sessions Judge TADA/POTA, Srinagar, whereby he has been enlarged on bail in a case arising out of FIR No.51/2017 for offences under Section 302, 148, 149, 392 and 341 RPC. The non-mentioning of this important fact in the grounds of detention exhibits non-application of mind on the part of detaining authority. This shows that the detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court rendered in the case of Anant Sakharam Raut v. State of Maharashtra & Ors. AIR 1987 SC 137. 12) Apart from the above, non-application of mind on the part of the detaining authority can also be inferred from the fact that in the grounds of detention the detaining authority, after recording that the preventive detention of the detenue is about to expire, proceeded to record that after his release, the detenue has indulged in anti-national activities. Thus, if the earlier detention order was yet to expire, there was no possibility of the detenue indulging in anti-national activities post his release. Non- application of mind on the part of the detaining authority is, therefore, writ large on the grounds of detention. 13) For the foregoing reasons, the petition is allowed and the impugned order of detention is quashed. Further custody of the detenue shall be regulated in accordance with the orders as may be passed in the criminal cases registered against him. WP(Crl) No.162/2023 14) The detention record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 21.02.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 21.02.2025 12:41