Shabir Ahmad Khanday vs Union Territory Of J&K And Others

M. A. Chowdhary, J

District Magistrate Kulgam- respondent No.2 (hereinafter for short ‘detaining authority’) in exercise of powers conferred on him under Section 8(a) of the J&K Public Safety Act, 1978, passed the detention order No. 50/DMK/PSA/2022 dated 25.06.2022 (for short ‘impugned order’), in terms whereof the petitioner Shabir Ahmad Khanday (for short ‘the detenue’) has been detained under the provisions of the Act in the interest of security of the State. The said detention order has been challenged through the medium of instant petition, allegedly being in breach of the provisions of Article 22(5) of the Constitution of India.

It is being pleaded in the petition that the detenue was arrested by the police without any justification and was placed in illegal confinement; that the allegations/grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective representation against these allegations; that the allegations whose mention is made in the grounds of detention have no nexus with the detenue and have been fabricated by the police in order to justify its illegal action of detaining the detenue. In addition, it is stated that the detaining authority has not prepared the grounds of detention by itself, whileas, same is replica of the police dossier. Also it is being pleaded that the detaining authority has not furnished the material and other connected documents, relied upon, to the detenue to enable him to make an effective representation; that the detenue has also not been informed that within what time-frame he can make representation against his detention, which clearly shows violation of the right of the detenue guaranteed in terms of the Article 22(5) of the Constitution of India.

Respondents in their counter affidavit/reply have stated that the grounds of detention are precise, proximate, pertinent and relevant. There is no vagueness or staleness in the grounds coupled with definite indications as to the impact thereof, which has been precisely stated in the grounds of detention. Further it is contended that the grounds of detention give complete account of the activities of the detenue which on the face of it are highly prejudicial for maintenance of security of the State, as such, there was no option left but to order detention of the detenue under Public Safety Act.

The main plea of learned counsel for the detenue is that the allegations made 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. All the allegations levelled against the detenue are far from reality and that the detenue is not involved in any unlawful activity.

In rebuttal, learned Dy.AG submits that the record reveals that there is no vagueness in the grounds of detention. The procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the detaining authority against his detention.

Heard, perused the detention record and considered.

On perusal of the grounds of detention, it transpires that the detaining authority had received the dossier from Sr. Superintendant of Police Kulgam wherein it has been stated that the detenue graduated from Government Degree College Kulgam and soon thereafter, indulged in various subversive activities and in short span of time became most trustworthy over ground worker and carried out all unlawful and subversive activities in district Kulgam with the aim to carry secession of the J&K UT from the rest of India. The grounds of detention further reveals that the activities of the detenue were quite prejudicial, who used to provide food, shelter and other logistics to active terrorists; besides the detenue participated in arms and ammunition procurement, recruitment and planning of attacks on security forces as well as weapon snatching. That during the course of investigation in FIR No. 204/2016 under Section 13 UAP Act of P/S Kulgam, the detenue was found involved in the commission of crime. Another FIR No. 117/2020 under Sections 13, 19, 20 of UAP Act of P/S Kulgam came to be registered in which the detenue was also found involved in the commission of crime.

Perusal of grounds of detention further transpires that the detenue was actively propagating the ideology of targeting minority communities, whose complicity in the recent civilians killings cannot be ruled out as main aim of the detenue was to disturb the communal harmony within the UT of J&K and also the peaceful atmosphere, with the intention to generate fear/terror among the general masses.

With no specific allegations, involvement of the detenue has been shown in the commission of offences in a case registered vide FIR Nos. 204/2016 and FIR No. 117/2020 registered at Police Station Kulgam under Sections 13, 19 and 20 of ULA(P) Act, with no details as to his trial or its outcome. This too is a stale ground to base the detention in the month of June 2022, of an incident in the year 2020, after a period of more than two years. The afore-stated grounds of detention, as such, are general allegations against the detenue, with no specific instances/incidents. The detention order based on such vague and stale 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.

The detenue has been shown as a security risk mainly on the ground that he was a hardcore over ground worker of banned terrorist outfit LeT in order to secede J&K UT from the rest of the Country, however, no other specific allegations against the detenue have been unfolded.

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. It would be apt to notice the observations of the Supreme Court in the said judgment:-

“First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father’s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited “The subject is an important member of ……” Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words “the subject is” into “you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi”. Thereafter word for word the police dossier is repeated and the word “he” wherever it occurs referring to Jai Singh in the dossier is changed into “you” in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner.”

On the touchstone of the law laid down above and the rival submissions, the order of detention, impugned in the instant petition, does not sustain on the aforesaid grounds.

In the afore-stated backdrop, this petition is allowed. Impugned Order of detention No. 50/DMK/PSA/2022 dated 25.06.2022 passed by District Magistrate Kulgam is, as such, quashed. The detenue namely Shabir Ahmad Khanday S/O Bashir Ahmad Khanday R/O Bugam Tehsil & District Kulgam, is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).

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

Disposed of, as such.