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Judgment
Sanjay Dhar, J
1) By the instant petition, the petitioner has sought quashment of order No.01/DMK/PSA/2022 dated 10.02.2022, issued by District Magistrate, Kulgam-respondent No. 2 (for brevity “Detaining Authority”). In terms of the aforesaid order, Mohd. Altaf Sheikh @ Captain (for short “the detenu”) has been placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security, sovereignty and integrity of the State.
2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. 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) Despite repeated opportunities, the respondents did not choose to file their counter affidavit. However, learned counsel for the respondents has produced the detention record.
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 petitioner has been disabled from making an effective representation against his detention as whole of the material which has been relied upon by the detaining authority while making the impugned detention order has not been supplied to him
(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.
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. A perusal of the detention record produced by learned counsel for the respondents reveals that the material has been received by the petitioner on 14.02.2022. 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 PSA Warrant (01 leaf), notice (01 leaf), grounds of detention (03 leaves), dossier (04 leaves), Copies of FIR (05 leaves) (total 14 leaves).
8) If we have a look at the grounds of detention, it bears reference to five FIRs, i.e., FIR Nos.151/2014, 162/2014, 183/2014, 117/2015 and 38/2016. It was incumbent upon respondents to furnish not only the copies of these FIRs but also the statements of witnesses recorded under Section 161/164 of the Cr. P. C during investigation of these FIRs and other material on the basis of which petitioner’s involvement in the said FIRs is shown. All this material would run in dozens of pages and it is impossible that all this material would be covered in only five leaves.
This was all the more necessary because the detenue is not nominated in any of the aforesaid FIRs.
9) 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. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board. In fact, the detenue has, in his representation before the Advisory Board, clearly stated that he has not been provided the copies of statements of witnesses etc. collected during investigation of the aforesaid FIRs. 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.
10) 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.
11) 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 security, sovereignty and integrity of the State.
12) A perusal of the grounds of detention reveals that the incidents referred therein pertain to the year 2014, 2015 and 2016, that is more than eight years, seven years and six years respectively 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, which amounts to an illegality.
13) 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.”
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.
14) For the foregoing discussion, the petition is allowed and the impugned order of detention bearing No.01/DMK/PSA/2022 dated 10.02.2022, issued by respondent No.2-District Magistrate, Kulgam, 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.
15) The record, as produced, be returned to the learned counsel for the respondents.