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2025 DIGILAW 156 (JK)

Bashir Ahmad Mir v. Union Territory of J&K

2025-03-24

SANJAY DHAR

body2025
JUDGMENT : 1) By the instant petition, veracity and legality of the detention order No.34/DMB/PSA/2023 dated 15.05.2023, issued by District Magistrate, Baramulla (for brevity “the detaining authority”) has been challenged. In terms of the aforesaid order, Bashir Ahmad Mir son of Mir Zaman Mir resident of Dachi Tehsil Uri District Baramulla (for short “the detenue”) has been placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State. 2) The petitioner has contended that the detaining authority has passed the impugned detention order without application of mind as the grounds of detention are vague, non-existent on which no prudent man can make an effective representation against such allegations. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been further urged that there has been non-application of mind on the part of detaining authority while passing the impugned detention order. It has also been contended that whole of the material that formed basis of the grounds of detention has not been furnished to the detenue. 3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted 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 was read over and explained to him. That the grounds urged by the petitioner are without any merit. It has been contended that all the procedural safeguards have been adhered to while passing the impugned order of detention. To substantiate their stand taken in the counter affidavit, the respondents have produced the detention record. 4) I have heard learned counsel for the parties and perused the 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 there has been non-application of mind on the part of the detaining authority as the detenue has already been acquitted in FIR No.51/2013 of P/S Parimpora and has been convicted in FIR No.26/2013 of P/S Uri, but this fact has not been mentioned in the grounds of detention. (II) That the whole of the material forming basis of the grounds of detention has not been furnished to the detenue. (III) 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. 6) 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 has already been acquitted of the offences arising out of FIR No.51/2013 of P/S Parimpora, by the Court of Additional Sessions Judge TADA/POTA, Srinagar, in terms of order dated 07.12.2021 and has been convicted in FIR No.26/2013 of P/S vide order dated 5 th October, 2018,passed by the Court of Judicial Magistrate 1 st Class (sub Judge), Uri. Copies of the orders issued by the said Courts in this regard have been placed on record by the petitioner. 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 7) Next it is urged that whole of the material forming basis of the grounds of detention has not been supplied to the petitioner which deprived him from making an effective representation against his detention. 8) In the aforesaid context, 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 17.05.2023. 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, copy of detention order ( 01 leaf ), notice of detention ( 01 leaf ), grounds of detention ( 02 leaves ), dossier of detention ( Nil ), total 04 leaves , have been supplied to him. 9) A perusal of the grounds of detention reveals that it bears reference to FIR Nos.51/2013of P/S Parimpora Srinagar and 26/2013 of P/S Uri. It was incumbent upon the respondents to furnish not only the copies of the FIRs but also the statements of witnesses recorded during investigation of the said FIRs as well as the other material on the basis of which petitioner’s involvement therein is shown. The same, it seems, has not been furnished to the petitioner. Even the copy of dossier of detention has not been supplied to the petitioner. 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. Furnishing of material including the FIR and statements of witnesses is a necessary requirement for enabling the detenue to make an effective representation against the order of detention. I am supported in my aforesaid view by the judgments of the Supreme Court 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 . 10) 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. 11) A perusal of the grounds of detention reveals that the incidents referred therein pertain to the years 2013, that is more than ten years prior to the passing of impugned order of detention. 11) A perusal of the grounds of detention reveals that the incidents referred therein pertain to the years 2013, that is more than ten 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. 12) 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.” 14. 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. 15. For the foregoing reasons, the petition is allowed and the impugned order of detention is quashed. The impugned order of detention, therefore, cannot be sustained. 15. 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. 16. The detention record be returned to the learned counsel for the respondents.