Mursaleen Bashir vs Union Territory Of J&K And Another

Vinod Chatterji Koul, J

Through the medium of this petition, challenge is thrown the Order no.06/DMP/PSA/21 dated 27.01.2021, issued by District Magistrate, Pulwama

(for brevity “detaining authority”), placing detenu, placing detenu, namely, Mursaleen Bashir S/o Bashir Ahmad Sheikh R/o Lalpora Chatlam Pampore Tehsil Pampore District Pulwama, under preventive detention in terms of provisions of J&K Public Safety Act, 1978, so as to prevent him from acting in any manner prejudicial to security of the State and directing his lodgement in Central Jail, Jammu (Kotbhalwal).

Reply in opposition to the petition has been filed by respondents.

I have heard learned counsel for parties and considered the matter.

The main ground taken in this writ petition is that detenu was not in a position to make an effective and meaningful representation either to detaining authority or to the Government against his detention because he was not provided the material relied upon and referred to by detaining authority while passing detention order and, therefore, there is violation of provisions of Article 22 (5) of the Constitution of India and in absence of such material detenu was prevented from making an effective representation. Subsequent important averment in the petition is that impugned order has been executed after a delay of more than six months since impugned order has been passed on 27.01.2021 and executed in the month of May 2021, after detenu was directed to be released on bail in default of prosecution in completing the investigation of the case within prescribed/extended period of 180 days. In this regard counsel for petitioner has invited attention of this Court to the order dated 20.05.2021, passed by Special Judge designated under NIA Act, Srinagar, by which detenu was enlarged on default bail. In support of his submissions, counsel for petitioner has placed reliance on a judgement dated 27.09.2019 passed in LPA no.121/2019 titled Younis Nabi Naik v. State of J&K & others.

On the other hand, counsel for respondents has stated that as activities of detenu have been found prejudicial to the security of the State, police recommended his preventive detention and, in this behalf, submitted dossier with relevant material before detaining authority, who examined record/ material and found preventive detention of detenu necessary, which was followed by passing of impugned order and that impugned order has been passed by competent authority with complete independent application of mind to the facts and circumstances of the case.

To evaluate the submissions made by counsel for parties vis-à-vis furnishing of material to detenu that has been relied upon by detaining authority while passing impugned detention order, it would be appropriate to go through the detention record, produced by counsel for respondents. Detention record contains, amongst others, Execution Report, Receipt of Detention Papers, detention order, communication addressed to detenu, dossier, Movement Order, copies of FIRs, copies of statement of witnesses which reveals that only five leaves have been furnished to detenu. Execution report, on its perusal, reveals that only four (04) leaves have been given to the detenu and, therefore, the material relied upon by detaining authority while passing impugned detention order has not been provided to detenu, thereby infringing his constitutional and statutory rights.

Bare reading of impugned detention order reveals that Senior Superintendent of Police, Awantipora, vide letter no.Conf/PSA/2021/05-08 dated 16.01.2021, produced material record, such as dossier and other connected documents in respect of detenu and it was only after perusal thereof that impugned detention order has been issued by detaining authority. Grounds of detention attribute various incidents and instances to detenu and mention that detenu has been providing logistic support to terrorists and in this regard case FIR no.90/2020 is stated to have been registered against detenu in police station Pampore. The material relied upon by detaining authority, thus, acquires importance in the facts and circumstances of the case. It needs no stress, that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to him. It is only after detenu has all the material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions as regard activities of detenu are baseless and misplaced. If detenu is not supplied the material, on which detention order is based, he will not be able to make an effective representation against his detention order. Failure on the part of detaining authority to supply the material relied upon at the time of making detention order to detenu, renders detention order illegal and unsustainable. While saying so, I draw support from the law laid down by the Supreme Court in Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of J&K & others, 2009 (I) S.L.J 219.

In the present case, it is submission of respondents that there are very serious allegations against detenu as he has always been in the lead role in antisocial and antinational activities, which are prejudicial to maintenance of public order. And in this connection, the criminal cases are already going on against detenu under various provisions of Penal Laws and if he is found guilty, he would be convicted and given appropriate sentence. Maybe, offences allegedly committed by detenu attract punishment under prevailing laws but that must be done under prevalent laws and taking recourse to preventive detention laws would not be warranted. Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. The Supreme Court in Rekha v. State of Tamil Nadu AIR 2011 SCW 2262, while emphasizing need to adhere to procedural safeguards, observed:

“It must be remembered that in case of preventive detention no offence is proved and the justification of such detention case is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as “jurisdiction of suspicion”, The Detaining Authority passes the order of detention on subjective satisfaction. Since Clause (3) of Article 22 specifically excludes the applicability of Clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.”

In a case of preventive detention, no offence is proved, nor any charge is formulated, and justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, when a person’s greatest of human freedoms, i.e., personal liberty, is deprived, the laws of preventive detention are required to be strictly construed, and a meticulous compliance with the procedural safeguards, howsoever technical, must be mandatorily made. Reference in this regard is made to Haradhan Saha v. State of West Bengal & ors, (1975) 3 SCC 198; Union of India v. Paul Manickam & anr, (2003) 8 SCC 342; Rajinder Arora v. Union of India (2006) 4 SCC 796; Powanammal v. State of Tamil Nadu and anr., AIR 1999 SC 618; G. M. Shah v. State of J&K, (1980) 1 SCC 132; Talib Hussain v. State of J&K & others, 2009 (II) SLJ 849; Nissar Ahmad Bhat v. State & ors, 2014 (III) SLJ 1047; Shahmali v. State & others, 2010 (1) SLJ 56; Dilawar Magray v. State of J&K & ors, 2010 (II) SLJ 696; and Sajad Ahmad Khan v. State & others, 2010 (II) SLJ 743.

Preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws. [See: - V. Shantha v. State of Telangana and others, AIR 2017 SC 2625]

Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order or security of the State, and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial to prevent him from committing certain types of offences. But such a detention cannot be made a substitute for ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. My views are fortified by the judgements rendered in the cases of Rekha’s and V. Shantha (supra) as also in Sama Aruna v. State of Telengana AIR 2017 SC 2662.

Intriguingly bare reading of grounds of detention reveal different name of detenu. It would be appropriate to reproduce relevant portion of grounds of detention:

“Subject:- Grounds of detention.

Name:- Mursaleen Bashir

Age : - 24 years

Parentage :- Bashir Ahmad Sheikh

Residence Lalpora Chatlam Pampore.

Tehsil :- Pampore

District :- Pulwama

Category :- over Ground Worker of JeM/LeT.

You Mr Shabir Ahmad Dar aged about 24 years are an ordinary resident of village Lalpora Chatlam Tehsil Pampore District Pulwama. You pursued your studies upto 7th Class from a School situated in your native village and due to lack of interest left your study halfway………”

As can been seen from above, name of detenu has been shown as Shabir Ahmad Dar in grounds of detention, which reflects and suggests non-application of mind on the part of detaining authority. On this count as well impugned order is liable to be set-aside.

Based on the above discussion, the instant petition is disposed of and Detention Order no.06/DMP/PSA/21 dated 27.01.2021, issued against Mursaleen Bashir S/o Bashir Ahmad Sheikh R/o Lalpora Chatlam Pampore Tehsil Pampore District Pulwama, by District Magistrate, Pulwama, is quashed. As a corollary, respondents are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of.

Detention record be returned to counsel for respondents.