Mushtaq Ahmad Bhat V. UT of J&K and another

WP(Crl)/192/2021

AI Insights

The case involves Mushtaq Ahmad Bhat, who was detained under a preventive detention order by the authorities in Jammu & Kashmir. The petitioner sought to quash this detention order, arguing that it was unjust and lacked substantive grounds. The respondents defended the detention, asserting it was preventive and complied with legal standards. The court examined the legality of the detention order, focusing on the adequacy of the grounds provided for detention and the procedural compliance by the authorities. The court concluded that the detention order was invalid due to the lack of compelling reasons for detaining an already incarcerated individual and the verbatim use of the police dossier in the grounds of detention, which showed a lack of independent assessment by the detaining authority.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 694419 (HC-SRINAGAR)
• Appeal Type: Others
• Pronouncement Date: 25-02-2022
• Assessment Year: misc
• Other Referred Cases: Surya Prakash Sharma v. State of U.P and Others, Rameshwar Shaw V. District Magistrate, Burdwan, Dharmendra Suganchand Chelawat V. Union of India, Naba Lone v. District Magistrate, Noor-ud-Din Shah v. State of J&K & Ors., Jai Singh and ors. v. State of Jammu & Kashmir, Mohd. Yousuf Rather v. State of J&K and others, Mohd. Yaqoob v. State of J&K & ors
• Laws Referred To: Article 22 (5) of the Constitution of India, Section 13 of Jammu & Kashmir Public Safety Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ILLIYAS LAWAY
• Assessee Lawyers: A H NAIK; ZIA
• Keywords: Habeas Corpus; Non application of mind; Preventive Detention; Quashment of detention order; Vague and ambiguous grounds
• Section: 13; 22(5)

Judgement Text

" HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP (Crl) No. 192/2021 Reserved on: 22.02.2022 Date of Pronouncement: 25.02.2022 Mushtaq Ahmad Bhat ……...Petitioner Through: Mr. A. H. Naik, Sr. Advocate, With Mr. Zia, Advocate. Versus UT of J&K and another …...Respondents Through: Mr.IlliyasLaway,GA. CORAM: Hon’ble Mr. Justice Javed Iqbal Wani, Judge J U D G E M E N T 1. Through the medium of instant petition quashment of detention order bearing No. 20/DMB/PSA/2021 dated 21.10.2021, (hereinafter for short the „impugned order,) passed against the detenu, namely, Mushtaq Ahmad Bhat, is being sought for by the petitioner as also a writ of Habeas Corpus for his release. 2. It is being stated in the petition that the detenu is a law abiding and peace-loving citizen and has never been involved in any subversive activity prejudicial to the public order or Security of the State. It is being stated that the detenu believes in peace and harmony and has always been upholding the sovereignty, integrity of the country. It is also being stated that detenu is a social activist, income tax payer and has received commendation from the Government during the social work he has undertaken in the service of the people whose residential houses and other properties were damaged during the earthquake in 2008 and to cement this fact he has annexed certificates of commendation with the instant petition. The detenu is stated to have been arrested on 20th of October, 2021 on the allegations of having 2 WP (Crl) No.192/2021 developed contacts with various terrorist / secessionist organization to carry out the activities of secessionism and terrorism and was kept in lockup in Police Station, Baramulla, and thereafter placed under preventive detention in terms of impugned order of detention and shifted to District Jail Kupwara on 29thof October 2021. 3. The impugned order is being challenged, inter alia, on the grounds that detenu had not been provided copies of the relevant material, like copy of dossier, details of any incidence with regard to the alleged association of the detenu with the terrorist organizations or any particular incident regarding his links with secessionist organizations, date and year when the detenu has done that, not a single incident has been spelt out,referred to in the grounds of detention, material, if any, collected during the course of investigation, thus, depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional and statutory rights of the detenu guaranteed under Article 22 (5) of the Constitution of India and Section 13 of Jammu &Kashmir Public Safety Act. 4. On the other hand, respondents, in their reply affidavit filed, resist and controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that detenu was detained pursuant to impugned order. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu. 5. It is being next contended by respondents that impugned order was executed in accordance with the relevant provisions of law and that the detenu was handed over to the Superintendent District Jail, Kupwara, for lodgment and that the contents of detention order/warrant and grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu thereof the detenu subscribed his signatures on the execution report/order. 3 WP (Crl) No.192/2021 6. It is being also stated that the impugned order was executed by ASI Manzoor Ahmad No. 632/B DPL Baramulla and that the detenu was handed over to Superintendent, District Jail, Kupwara, for lodgment. 7. It is being next stated that the Advisory Board, after considering the material placed before it, in terms of Section 16 of the Act, held that there is sufficient cause for detention of the detenu. On receipt of the opinion of the Advisory Board, the Government confirmed order of detention. Respondents in the process are stated to have complied with all statutory, constitutional provisions, and followed all requisite formalities without violating any of them. 8. Heard learned counsel for the parties, perused the record and considered the matter. 9. While dealing with the first contention/ground of challenge urged by the petitioner qua non-recording of compelling reasons for detaining the detenu when he was already in custody, it would be appropriate to refer to the judgement of the Apex Court in this regard passed in case titled as Surya Prakash Sharma v. State of U.P and Others, reported in 1994 (3) SCC 195, wherein at paragraph 5 following has been noticed and laid down: “5. The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this Court since it first came up for consideration before a Constitution Bench in Rameshwar Shaw V. District Magistrate, Burdwan (1964) 4 SCR 92: AIR 1964 SC 334: (1964) 1Crl LJ 257. To eschew prolixity we refrain from detailing all those cases except that of Dharmendra Suganchand Chelawat V. Union of India (1990) 1 SCC 746: 1990 SCC (Crl) 249: AIR 1990 SC 1196, wherein a three Judge Bench, after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words(SCC 754 para 21: “The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the 4 WP (Crl) No.192/2021 detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression ‘compelling reasons’ in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 10. Perusal of the grounds of detention/order of detention would manifestly reveal that the detaining authority has not drawn any satisfaction as per the mandate laid down by the Apex Court in the case ofSurya Parkash Sharma(supra), while passing the impugned detention order against the detenu, so much so, the detaining authority has also failed to express any such compelling reason even in Reply Affidavit no such plausible reason is coming to fore. The impugned order, thus in law, would not sustain on this count alone. 11. Another contention urged by learned counsel for petitioner as regards grounds of detention being the ditto copy of the dossier prepared by the Senior Superintendent of Police, Baramulla, has taken this Court to have a go through the recordproduced by the respondents. A bare perusal thereof revealsthat the grounds of detention are the ditto copy of the dossier. The detaining authority may get inputs from different agencies, including Senior Superintendent of Police of concerned District, but responsibility to formulate the grounds of detention, however, exclusively rests with the detaining authority. It is the detaining authority, who has to go through the reports and other inputs received by it from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that a person is to be placed under the preventive detention. It is, thus, for the detaining authority to formulate the grounds of detention and satisfy itself that the grounds of detention so formulated warrant passing of the order of preventive detention. Perusal of the grounds of detention, in the 5 WP (Crl) No.192/2021 present case, would demonstrate that it is a verbatim copy of dossier of Senior Superintendent of Police, Baramulla, submitted by him to the concerned District Magistrate. This Court as regards the verbatim reproduction of the dossier in grounds of detention, in the case of Naba Lone v. District Magistrate 1988 SLJ 300, while dealing with a case where a similar situation arose, has observed: “The grounds of detention supplied to the detenue is a copy of the police dossier, which was placed before the District Magistrate for his subjective satisfaction in order to detain the detenue. This shows total non-application of mind on the part of the detaining authority. He has dittoed the Police direction without applying his mind to the facts of the case.” 12. This Court again in the case of Noor-ud-Din Shah v. State of J&K &Ors. 1989 SLJ 1, quashed detention order, which was only a reproduction of dossier supplied to detaining authority on the ground that it amounted to non-application of mind. The Court observed: “I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenue in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case. He has acted as an agent of the police. It was his legal duty to find out if the allegations levelled by the police against the detenue in the dossier were really going to effect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenue, so as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive detention as or detained in the Act, Passing of an order without application of mind goes to the root of its validity, and in that case, the question of going 6 WP (Crl) No.192/2021 into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act.” 13. A similar situation arose in the case of Jai Singh and ors. v. State of Jammu & Kashmir AIR 1985 SC 764, before the Supreme Court. The Court quashed the detention as it found that there cannot be a greater proof of non-application of mind and that the liberty of a subject being a serious matter, it is not to be tripled with in this casual, indifferent and routine manner. The Court observed: “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 Jail 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, 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 Jail Singh in the dossier is changed into „you‟ in the grounds of detention. We are afraid it is difficult of find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner.” In view of the above settled legal position, the order impugned cannot sustain. 14. Bare perusal of the grounds of detention revealsthat the grounds of detention are vague and ambiguous and do not refer to any dates, month or year of the activities, which have been attributed to the detenu. The detention in the preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified. It may 7 WP (Crl) No.192/2021 not be out of place to mention here that the preventive detention is largely precautionary and is based on suspicion. The Court is ill- equipped to investigate into the circumstances of suspicion on which such anticipatory action must be mostly based. The nature of the proceeding is incapable of the objective assessment. The matters to be considered by the detaining authority are whether the person concerned, in view of his past conduct judged in the light of the surrounding circumstances and the other relevant material, is likely to act in a prejudicial manner as contemplated by the provisions of the law and, if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not the matters susceptible of the objective determination, and they could not have been intended to be judged by the objective standards. They are essentially the matters which have to be administratively determined for the purpose of taking the administrative action. Their determination is, therefore, deliberately and advisedly left by the Legislature to the subjective satisfaction of the detaining authority which, by reason of its special position, experience and expertise, would be best suited to decide them. Thus, the Constitutional imperatives of Article 22(5) and the dual obligation imposed on the authority making the order of preventive detention, are twofold: (1) The detaining authority must, as soon as may be, i.e. as soon as practicable, after the detention order is passed, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention, i.e. to be furnished with sufficient particulars to enable him to make a representation which, on being considered, may obtain relief to him. The inclusion of an irrelevant or non-existent ground, among other relevant grounds, is an infringement of the first of the rights and the inclusion of an obscure or vague ground, among other clear and definite grounds, is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenu entitling him to approach the Court for relief. The reason why the inclusion of even a simple irrelevant or obscure ground, among several 8 WP (Crl) No.192/2021 relevant and clear grounds, is an invasion of the detenu‟s constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds, and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. Even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is non-existent or misconceived or irrelevant, the order of detention would be invalid. Where the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague or irrelevant the entire order must fall. The satisfaction of detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention. Irrelevant grounds, being taken into consideration for making the order of detention, are sufficient to vitiate it. One irrelevant ground is sufficient to vitiate the order as it is not possible to assess, in what manner and to what extent, that irrelevant ground operated on the mind of the appropriate authority, and contributed to his satisfaction that it was necessary to detain the detenu in order to prevent him from acting in any manner prejudicial to the maintenance of the public order or security of the State. These are the views and observations made by this Court inMohd. Yousuf Rather v. State of J&K and others, AIR 1979 SC 1925; and Mohd. Yaqoob v. State of J&K & ors, 2008 (2) JKJ 255 [HC]. 15. Viewed thus, in the context of what has been observed, analyzed and considered in the preceding paragraphs, instant petition is allowed and consequent to which the impugned order of detention bearing No. 20/DMB/PSA/2021 dated 21.10.2021 is quashed, with a direction to the respondents including the Jail Superintendent concerned to release the detenu forthwith from preventive custody unless required in any other case. 16. Disposed of along with all connected CrlM(s). 17. No orders as to costs. 9 WP (Crl) No.192/2021 18. The record produced by the respondents for perusal of the Court shall be returned to learned counsel for the respondents. (Javed Iqbal Wani) Judge Srinagar 25.02.2022 TASADUQ SAB: Whether approved for reporting? Yes / No. "