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2023 DIGILAW 50 (JK)

Mohammad Saleem Parray v. Union Territory Of J&K

2023-02-16

SANJAY DHAR

body2023
JUDGMENT : 1. By the instant petition, the petitioner has sought quashment of order No.03/DMB/PSA of 2022 dated 07.04.2022, issued by District Magistrate, Bandipora (for brevity “Detaining Authority”). In terms of the aforesaid order, Mohammad Saleem Parray son of Mohammad Ramzan Parray resident of Khos Mohalla Hajin Tehsil Hajin District Bandipora (for short “the detenu”) has been placed under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of public order. 2. The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Statutory procedural safeguards have not been complied with in the instant case as whole of the material that formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue and that there has been total non-application of mind on the part of the detaining authority while passing the impugned detention order. 3. The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of the detenue are highly prejudicial to the maintenance of public order. It is pleaded that the detention order and grounds of detention were handed over to the detenue and the same were read over and explained to him. It has been urged that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. The respondents have produced the detention records in order to buttress the contentions raised in the counter affidavit. 4. I have heard learned counsel for parties and perused the detention record. 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 grounds of detention are verbatim copy of the dossier, which shows that the detaining authority has not applied its mind while formulating the grounds of detention which is a pre-requisite for passing an order of detention; (II) That the detenue’s right of making an effective representation against his detention has been violated as the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him. (III) That there has been non-application of mind on the part of the Detaining Authority while passing the impugned order of detention, inasmuch as, it was not alive to the fact that the detenu had been enlarged on bail in certain criminal cases registered against him as the said fact is not mentioned in the grounds of detention (IV) 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 public order. 6. Per contra, the learned counsel for the respondents has made an attempt to justify the passing of the order impugned by contending that the detenue was a habitual criminal, inasmuch as there were various FIRs pending against him and on this basis, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention as there was every likelihood of the detenue indulging in similar activities. It has been further contended that all the documents relied upon by the Detaining Authority were, provided to the detenue and in token of having received the same, the detenue has signed the receipt. It is also urged that the contents of the documents were read over and explained to the detenue in the language understood by him. 7. While going through the detention records, as produced, the first ground projected by the learned counsel for the petitioner gets support from the material on record. The grounds of detention are replica of dossier with interplay of some words here and there, which exhibits non-application of mind on the part of detaining authority. In the process, the deriving of subjective satisfaction has become a causality. While formulating the grounds of detention, the Detaining Authority has to apply its own mind. It cannot simply reiterate whatever is written in the police dossier. In my aforesaid view, I am supported by the judgment of the Supreme Court in the case of Jai Singh and ors vs. State of J&K ( AIR 1985 SC 764 ). 8. The grounds of detention and the dossier, if in similar language, go on to show that there has been non-application of mind on the part of the Detaining Authority. 8. The grounds of detention and the dossier, if in similar language, go on to show that there has been non-application of mind on the part of the Detaining Authority. The similarity of contents of grounds of detention and police dossier in the instant case clearly exhibits mechanical functioning of the detaining authority, thereby making the impugned order of detention unsustainable in law. 9. Next it is contended by learned counsel for the petitioner that the detenue has been disabled from making an effective representation against the order of detention as the material, which formed base of the grounds of detention and the consequent order of detention, has not been furnished to him. 10. A perusal of the detention record produced by learned counsel for the respondents reveals that the material has been received by the petitioner on 11.04.2022. Report of Executing Officer in this regard forms part of the detention record, a perusal whereof reveals that it bears the signature of petitioner and according to it, the petitioner has received copy of detention order (01 leaf), Notice of detention (01 leaf) grounds of detention (04 leaves), dossier of detention (Nil), Copies of FIR, statements of witnesses and other related relevant documents (Nil) (total 06 leaves). 11. It is clear from the execution report, which forms part of the detention record, that copy of the police dossier has not at all been supplied to the detenue.If we have a look at the grounds of detention, it bears reference to three FIRs, Viz. FIR No.66/2017, 36/2018 and 39/2018 of P/S Hajin. It was incumbent upon respondents to furnish not only the copy of these FIRs but also the statements of witnesses recorded during investigation of these FIRs and other material on the basis of which petitioner’s involvement in the said FIRs is shown but the same has not been done by the respondents. 12. 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. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue. 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. 13. 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. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others ( AIR 1999 SC 3051 ), Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. ( AIR 2009 SC 2184 ), Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318 , Shalini Soni v. Union of India, (1980) 4 SC 544, and Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241. 14. Next it has been contended that the impugned detention order suffers from non-application of mind on the part of the detaining authority, 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.36/2018 and FIR No.39/2018. In this regard, the petitioner has placed on record copies of the orders passed by the Court of Judicial Magistrate, 1st Class, Sumbal Sonawari. 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. 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 . 15. It has been further 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 public order. 16. A perusal of the grounds of detention reveals that the incidents referred therein pertain to the year 2017 and 2018, that is more than 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. 17. 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. 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 public order. 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. 18. Viewed thus, the petition is allowed and the impugned order of detention bearing No.03/DMB/SA of 2022 dated 07.04.2022, issued by respondent No.2-District Magistrate, Bandipora, 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 record, as produced, be returned to the learned counsel for the respondents.