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Judgment
Mumtaz Ahmad Balgati through his brother Manzoor Ahmad Balgati has challenged his detention order No. 60-DMK/PSA of 2019 dated
25.11.2019, passed by respondent No.2. It is submitted that the detenue was admitted to default bail in F.I.R No. 129/2019 but was not released and
was shifted to Central Jail, Srinagar for preventive detention. The detention order is challenged on the grounds that there was no justification to pass
detention order against the said Mumtaz Ahmad Balgati; that the grounds of detention are vague; that the detaining authority has not applied mind of
own but relied upon the police dossier only; that the relevant material has not been furnished to the petitioner thereby effecting his right to have
effective representation against his detention order; that the order of detention was passed in English and the translated version of the order was not
made available in Kashmiri/Arabic language to the detenue who was having knowledge of the above languages only; that the detenue was already in
custody at the time of passing of the detention order and no compelling reason is given in the impugned order for detention of the petitioner; that there
is only one alleged activity mentioned in the ground of detention and that the order of detention has been passed on 25.11.2019 but has been executed
in the last week of December without any justification.
The reply affidavit has been filed on behalf of the respondent No.2. The respondent has justified the order of detention by submitting that the order
has been passed as per the provisions of the Public Safety Act. It is submitted that the contents of warrants were read over and explained to the
detenue who also put his signatures on the same and was also informed of his right to make representation against his detention order. The order has
been passed with complete independent application of mind by the authority. The detenue is involved in offence under Section 3 of the Explosive
Substances Act and ULA (P) Act at Police Station, Kupwara in FIR No. 129/2019. Indeed, the prayer is for dismissal of the petition.
Heard learned counsel for the parties and perused the digital record provided to the Court.
The words „preventive detention‟ speak for themselves the meaning. The difference between the preventive detention and prosecution is aptly
observed in Haradhan Saha‟s case reported in (1975) 3 SCC 198:
“32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary
power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution
even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made
before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even
acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.
Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are
different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past
act is merely the material for inference about the future course of probable conduct on the part of the detenu.â€
The order of detention is approved by the Government Order No. Home/PB-V/195 of 2019 dated 28.11.2019. The Board constituted under the
Public Safety Act has approved the detention order vide dated 01.01.2020. Consequently, the Government vide order No. Home/PB-V/166 of 2020
dated 31.01.2020 confirmed the order of detention dated 25.11.2019 for a period of six months in the first instance. This period has been further
extended by the Government from time to time, the last order being Home/PB-V/1863 of 2020 dated 22.12.2020 for a further period of six months and
the detenue has been lodged in District Jail, Kathua.
The perusal of the record reveals that the dossier with regard to the petitioner was prepared by Superintendent of Police, District Kupwara with the
finding that the activities of the petitioner pose a strong threat to the security scenario. Respondent No.2 while passing the order of detention has
separately recorded the grounds of detention. As per the grounds of detention the petitioner is a hardcore associate of the militants and hell bent on
challenging the security of the State by indulging in terrorist activities and in case he is permitted to remain at large he will continue to indulge in
terrorist activities which will prove detrimental to the security of the State. The grounds of detention indeed referred to the registration of F.I.R No.
129/2019 (supra) against the petitioner. Perusal of the file further reveals that the petitioner has been provided seven leaves consisting of PSA
warrant, notice, grounds of detention, copy of dossier and copy of the F.I.R. The order of detention of 25.11.2019 has been executed on 28.12.2019 in
Central Jail, Srinagar. The execution of detention order reveals the signature of the detenue-Mumtaz Ahmad Balgati. The receipt of detention papers
also records the signature of detenue. The receipt of grounds of detention reveals that the detenue has been made aware of the documents in
Kashmiri/Urdu/English languages. However, the communication no. Pros/Dos-26/2019/42015-20 dated 31.12.2019 from superintendent of Police to
the Principal Secretary to the Home department speaks of the providing of the translated copies of detention order and grounds of detention to the
detenue. The record file does not reveal containing any such translated version of the documents. The providing of the material was not mere
formality but adherence to the same was obligation from which the respondents could not escape. Further, this communication reveals that the
documents have been explained to the detenue in Pahari and Urdu languages. The same is contrary to the record as there is no such noting in the
report pertaining to the execution of the warrant of detention order. There cannot be casual approach by the authorities even while executing the
detention order.
One of the grounds argued for quashment of detention order is that the petitioner was served with the detention order on 28.12.2019 though it was
passed on 25.11.2019 by the respondent No.2 meaning thereby that there was delay in execution of the detention order but without any reasonable
explanation for the same. It is evident that the petitioner was already in custody by the time the warrant of detention was executed on 28.12.2019. No
explanation is forthcoming as to why the detention order has been executed almost after one and a half month. Once the petitioner was in custody, the
detention order could have been executed without any delay upon the detenue. It is not that the detention order can be executed as per the
convenience of the authority but has to be executed at an earliest unless there are reasons which delayed the execution of the detention order.
The detention order is required to be quashed on the findings given above. The court need not go into other aspects of the case in the light of the
discussion made above on the key grounds of challenge to the detention order.
In the light of the above, the detention order passed by respondent No.2 cannot be upheld and is liable to be quashed. Accordingly, the detention
order in question is quashed. The petitioner Mumtaz Ahmad Balgati be released forthwith if not required otherwise in any other case.