AI Structured Summary
Not yet generated for this judgment
Judgment
M.A.Chowdhary, J
The petitioner has questioned in this writ petition the legality and validity of the Order No.53/DMP/PSA/2023 dated 25.10.2023, passed by respondent No.2-District Magistrate, Pulwama, (for short “Detaining Authority”) under Section (8) of the J&K Public Safety Act whereby Sahil Farooq Mir @ Sahil S/O Farooq Ahmad Mir R/O Chakoora Pulwama A/P Noorpora Tehsil Awantipora District Pulwama (for short “detenue”) has been placed under preventive detention and directed to be lodged in Central Jail Jammu.
The petitioner has contended that the Detaining Authority has passed the impugned detention order, mechanically, without application of mind, inasmuch as the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been further urged that the material, which formed basis of the grounds of detention and the consequent order of detention, has not been provided to the detenue. It has also been averred that the grounds of detention are vague and the same are mere assertions of the detaining authority on which no prudent man can make an effective representation against the detention. Further it is pleaded that there is no proximate and live link between the alleged activities of the detenue mentioned in the grounds of detention and passing of the detention order as such the grounds of detention are totally vague, stale and based on surmises and conjecture, because in the grounds of detention the allegations against the detenue pertain to the alleged activities way back to the year 2020 and there is no fresh allegation against the detenue which would warrant the detaining authority to detain the detenue under the provisions of Public Safety Act. On these grounds the detention order is sought to be set aside.
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 has been averred in the reply that the detaining authority has followed the provisions of J&K Public Safety Act and the detenue has been detained only after following due procedure. It is pleaded that the detention order and grounds of detention along with relevant material were handed over to the detenue, which were read over and explained to him; that the grounds taken by the petitioner are legally misconceived, factually untenable and without any merit. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit.
I have heard learned counsel for parties, gone through the detention record and considered the matter.
Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main thrust of challenge to the impugned order of detention is that the grounds of detention are vague and cryptic, inasmuch as the material particulars of that that the detenue is a hard Core OGW of Lashkar-e-Toiba (LeT) outfits in District Pulwama, as mentioned in the grounds of detention, have not been disclosed, which prevented him from making an effective representation against his detention and that there is no proximate and live link between the alleged activities of the detenue to be prejudicial to the maintenance of Security of the State as such the grounds of detention are totally vague and stale.
Learned counsel for the respondents, ex adverso, argued that the detention of the detenu was required, to prevent him from acting in a manner prejudicial to the security of the State; that it is settled law that the preventive detention can be ordered by the detaining authority in case a satisfaction is drawn with regard to activities prejudicial to the Security of the State. He has further argued that the petitioner had been provided entire record which was based to order his detention and that the petitioner was informed about his legal right of filing representation against his detention to the detaining authority, as well as, to the Govt.
On perusal of the detention record produced by learned counsel for the respondents, the ground projected regarding vagueness of the averments made in the grounds of detention, appears to be forceful. There is no mention of the particulars of the place, the identity of the persons alleged to have received support of the detenue and the particulars of the period in the grounds of detention. These grounds, being vague and lacking in material particulars, as such, the detenue could not make an effective representation against his detention, on the basis of these vague allegations. Thus, there has been violation of constitutional guarantees envisaged under Article 22(5) of the Constitution. Thus, the detention order is illegal and unsustainable. In my aforesaid view, I am fortified by the judgments of the Supreme Court in the case of Jahangir khan Fazal Khan Pathan vs. Police Commissioner, Ahmadabad, (1989) 3 SCC 590, Abdul Razak Nanekhan Pathan v. Police Commissioner, Ahmadabad, AIR 1989 SC 2265.
The non-application of mind by the detaining authority is also writ large in view of the fact that the detention order has been framed in a manner that it has not applied its mind but has acted upon the dossier, prepared by the Sr. Superintendent of Police Awantipora only. This is evident from the opening sentence of the order which is reproduced as under:-
“Whereas, Sr. Superintendent of Police Awantipor vide his letter No. Conf/PSA/23/703-06 dated 17.10.2023 has produced material record, such as dossier and other connected documents I am satisfied that with a view to prevent Sahil Farooq Mir @ Sahil ….”
The record further reveals that the incident/FIR referred in the grounds of detention pertain to the year 2020 and that is near about 3 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 incident(s).
The Supreme Court in the case of Sama Aruna v. State of Telengana & 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 behaviour 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 for doing it.”
From the aforesaid discussion 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 Security of the State. In the instant case, the said link is completely missing as the time between the order of detention and the incident(s) 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 on this ground also.
For the foregoing reasons, the petition is allowed and the impugned order of detention is set aside. The respondents are directed to release the detenue from the preventive custody forthwith provided he is not required in connection with any other case.
The record, as produced, be returned to the learned counsel for the respondents.