Faisal Ahmad Bhat vs Union Territory Of J&K & Anr

M. A. Chowdhary, J

In exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 (for short ‘the Act’), respondent No.2 - District Magistrate Pulwama (for short ‘detaining authority’) has passed the Detention Order No. 43/DMP/PSA/22 dated 18.06.2022 (for short ‘impugned order’), in terms whereof the detenue namely Faisal Ahmad Bhat, was ordered to be detained under the Act, in order to prevent him from resorting to activities prejudicial to the security of the State.

The detention of the detenue has been challenged inter alia on the grounds that the allegations leveled in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention on such grounds is unjustified and unreasonable; that the relevant material has not been furnished to the detenue and whatever material was furnished to him, it was not possible to make a purposeful representation, thus, the right of the detenue under Article 22 of the Constitution stands violated; that the grounds of impugned detention order is a verbatim copy of the dossier and no other material has been considered by the detaining authority, which speaks volumes about non-application of mind on part of the detaining authority, which does not justify the preventive detention and the impugned order requires quashment.

Respondents, pursuant to notice, have filed their counter affidavit, wherein it is stated that the order of detention was passed by the detaining authority after being satisfied on the basis of the material made available by the police; that it was necessary with a view to prevent the detenue from acting in any manner prejudicial to the maintenance of security of the State, to place him under preventive detention. It is submitted that the detention of the detenue has been ordered, strictly in accordance with the provisions of the Act, observing the procedural safeguards prescribed under the provisions of the Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. It is further submitted that the grounds of detention transpire the activities of the detenue which, on the face of them, are highly prejudicial to the security of the State and, therefore, there was no option left to the detaining authority but to order detention of the detenue under the Act.

Heard learned counsel for the parties, perused the material available on record and considered the matter.

On going through the grounds of detention, during perusal of detention record, it comes to fore that the detenue was alleged to be an active conduit of banned terrorist organization and often aids and abets the terrorist activities carried out by the banned terrorist organization in and around the Pulwama town; that the detenue, besides abetting the terrorist acts of the banned terrorist organization harbors its terrorists at different locations and is involved in motivating and instigating the youth of the district Pulwama and its adjoining areas for anti-national and anti-social activities and provokes the innocent populace of the area for indulging in activities which are prejudicial to the overall peace, security and tranquility of the UT of J&K in general and district Pulwama in particular; that the detenue has a mental bent towards insurgency and he alongwith the other anti-national elements is still continuing his anti-national and anti-social activities and thereby posing potential threat to the security of the State; that the detenue is of fundamentalistic ideology and with the passage of time, the detenue became a hard core fundamentalist and sympathizer of terrorists and provided all logistical support to them.

As revealed from the detention record the petitioner has been shown as over ground worker of terrorist organization, alleging that he was providing shelter and logistic support to the terrorists of the said outfit. However, without disclosing name of any terrorist organization or any specific incidents or activities of the petitioner as to when, how and where the said logistic support was provided by the petitioner to the terrorists, therefore, the allegations on which the detention order has been passed are general and vague.

The detention order based on such vague grounds is not sustainable, for the reason that the detaining authority before passing the order has not applied its mind to draw subjective satisfaction to order detention of the detenue by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India. In this regard reliance can be placed on the judgments of Supreme Court in the cases (i) Jahangirkhan Fazal Khan Pathan Vs. Police Commissioner Ahmadabad (1989) 3 SCC 590 and, (ii) Abdul Razak Nanekhan Pathan Vs. Police Commissioner Ahmadabad AIR 1989 SC 2265.

It is argued by the learned counsel for the petitioner that the grounds of impugned detention order is a verbatim copy of the dossier and no other material has been considered by the detaining authority which speaks volumes about the non-application of mind on the part of the detaining authority which does not justify the preventive detention and the detention order requires quashment.

In a case titled ‘Jai Singh & Ors. v. State of Jammu & Kashmir’ reported as AIR 1985 SC 764, it has been observed that if the detention order is verbatim copy of the dossier, it speaks about non-application of mind by the detaining authority. Para-13 of the judgment, being relevant, is reproduced as under:-

"13. Applying the settled legal position to the facts of the present case, I find that the order impugned cannot stand as it is based on grounds of detention, which is only verbatim copy of police dossier. The order of detention, for the reasons, exhibit total non- application of mind on the part of detaining authority and therefore, the petition is allowed and the detention order No. PSA/104 dated 16.10.2020 passed by the District Magistrate, Kathua-respondent No. 2 directing the detention of Balbir Chand S/o Rana R/o Chack Drab Khan, Tehsil and District Kathua is quashed. Respondents are directed to release the detenue forthwith, provided he is not required in connection with any other case".

Perusal of the detention record further reveals that the detenue has not been furnished all the documents; as he has only been furnished copies of detention order, notice of detention and grounds of detention, total four leaves. He has neither been provided with a copy of dossier of detention, copies of FIR, if any, statements of witnesses nor any other related document. This means that he was not provided with whole of the material, which based his detention. The failure on the part of the detaining authority to supply material, renders detention illegal and unsustainable. In this regard, the Hon’ble Apex Court in the judgment rendered in the case of “Sophia Gulam Mohd. Bham V. State of Maharashtra & Ors. (AIR 1999 SC 3051), has held as under:-

“The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.”

It has already been held in various judgments by the Apex Court that in case the detenue has not been provided all the relevant material on which the subjective satisfaction is stemmed, same renders the order of detention bad in law. It can be reasonably inferred that the detenue has not been in a position to make an effective representation, which is statutory and constitutional right of said detenue, due to this lapse of detaining authority and so it renders the impugned order bad.

In Smt. Icchu Devi Choraria Vs. Union of India & Ors. (AIR 1980 SC 1983), the Apex Court has observed as :-

“The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.”

“This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred.”

It is also notable that normal law in the instant case had to be assumed to be sufficient to disable the detenue to indulge in any such activity which may have been in the estimation of the detaining authority to be treated prejudicial to the security of the State.

In view of the facts of the instant case and the law laid down by the Hon’ble Apex Court as referred above, the order of detention, impugned herein, does not sustain and is required to be quashed.

Petition is allowed accordingly and the impugned detention order bearing No. 43/DMP/PSA/22 dated 18.06.2022 passed by District Magistrate Pulwama, is hereby quashed. As a sequel, personal liberty of the detenue namely Faisal Ahmad Bhat S/O Late Gh. Qadir Bhat R/O Malangapora Tehsil Awantipora District Pulwama, is ordered to be restored forthwith, provided he is not warranted in other case(s).

Detention record, as produced by learned counsel for the respondents, be returned back to him.

Disposed of, accordingly.