Zubair Ahmad Laway vs State Of Jk And Anr

The present petition has been filed by the petitioner through his father for quashing of order dated 9th August 2019 bearing No. 43/DMK/PSA/19 (hereinafter referred to as 'order impugned') issued by respondent No. 2 by virtue of which the petitioner has been detained under the provisions of J&K Public Safety Act.

It is submitted that the petitioner was arrested by police without any justification or cause on 8th August 2019and was sent to Central Jail Srinagar, to be detained under the J&K Public Safety Act in terms of the order impugned. It is further stated that the petitioner approached the office of respondent No. 2 and unofficially obtained the photostat copies of the order impugned, communication letter and the grounds of detention. The petitioner has challenged the order impugned on the grounds that the allegations made in the grounds of detention are vague and no prudent man can make an effective representation against these allegations; that the detaining authority has not given any reasonable justification to pass the order of detention on the basis of alleged activities those took place three years ago, as such, order impugned suffers from non-application of mind; that the petitioner was earlier detained under the preventive custody and the order was quashed by this court and there are no fresh allegations attributed to the petitioner that necessitated the issuance of fresh detention order; that the petitioner has already been admitted to bail in all the above mentioned cases but these facts have not been mentioned in the grounds of detention; that no documents those have been relied upon by respondent No. 2 while passing the order of detention have been furnished to the petitioner; that the detenue is not English literate and understands only Kashmiri/Urdu language, but the order is in English and no translated script was furnished to the petitioner; that the detenue was not informed that he has a right to make representation against his order of detention before the detaining authority or the Government.

Counter stands filed by the respondents in which it has been stated that the petitioner came to be detained under the Public Safety Act vide order impugned and all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority, therefore there is no illegality in the issuance of detention order. It is further stated that in compliance to the detention order, the warrant was executed by the executing officer Jangsher Singh, ASI and the petitioner was handed over to the SP, Central Jail Srinagar for lodgment. The contents of detention order/ warrant and grounds of detention were read over and explained to the detenue in the language which he fully understood and in view thereof, he appended his signature on the execution report/order. The petitioner was also informed about his right to make a representation to the detaining authority or the Government against his detention. It is also stated that the case of the petitioner was referred to the Advisory Board and after the Advisory Board opined that there is sufficient cause of detention of the detenue in the instant case and it was only after the report/opinion of Advisory Board, the Government has confirmed the order of detention.

Learned counsel for the petitioner has reiterated the grounds taken in the petition and has laid much stress that no documents have been furnished to the detenue so as to enable him to make an effective representation.

Per contra Learned Dy AG, Mr. Asif Maqbool, appearing for the respondents has argued that all the statutory as well as constitutional requirements have been fulfilled by the respondents while passing the order of detention and as such, the detention order is legal.

Heard and perused.

A bare perusal of the ground of detention reveal that the petitioner has been ordered to be detained on the basis of three FIRs i.e., bearing FIR No. 103/2016 registered under Section 147, 148, 149, 307, 336, 427, 332, 225, 392, 364, 436 RPC 3 PPSA, 7/25,7/27 Arms Act of P/S D. H. Pora, FIR No. 104/2016, registered under Section 147, 148, 149, 336, 307, 332, 427, 392, 436 RPC, 13 ULA(P) Act, 3 PPSA Act of P/S D. H. Pora and FIR No. 105/2016, under Section 147, 148, 149, 307, 336, 427, 436, 511, RPC, 3 PSSA, 7/25, 7/27 Arms Act of P/S D. H. Pora.

The perusal of the grounds of detention reveal that all these three FIRs pertain to year 2016, and thereafter in the grounds of detention, there is no whisper that after the year of 2016, the petitioner has indulged in any illegal activity in the year 2017, 2018 and 2019 i.e. till the passing of detention order. Thus apparently there is a delay of three years in passing the order of detention.

The Apex Court in Laxhman Khatik vs State of Bengal, 1974 (4) SCC 1 while considering the detention order under the maintenance of Maintenance of Internal Security Act, 1971, has held that prompt action in such matter should be taken as soon as the incident like those which are referred to in the grounds have taken place. It is also profitable to take note of the judgment of the Apex Court in case titled, Saeed Zakir Hussain Malik vs State of Maharashtra, reported in (2012) 8 SCC 233. The relevant paragraph Nos. 27 and 28 read as under:

"27) As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned.

28) It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenue, there is no need to go into the factual details."

So, once there is a gap of three years in the issuance of order of detention, vis-à-vis last illegal activity attributed to the petitioner, the proximate link between the detention order and the purpose for which it has been issued is snapped. On this ground only, the order impugned is required to be quashed.

Otherwise, also, a perusal of the ground of detention reveals that there is no whisper that the petitioner was earlier also detained under the Public Safety Act and his order of detention was quashed by the court vide order dated 31st December 2016 and it is evident that this vital fact has not been brought to the notice of the detaining authority. Needless to mention here that notwithstanding the quashing of the earlier detention order, the subsequent detention order can be passed, but the facts remains that the issuance as well as quashing of earlier detention order must be brought to the notice of the detaining authority, that has not been done in the instant case.

In view of what has been discussed above, on these counts only, the detention order dated 9th August 2019 bearing No. 43/DMK/PSA/19 is required to be quashed, and, as such, the same is quashed. The detenue is ordered to be released forthwith provided he is not required in any other case.

The petition is allowed.