LPA/151/2022 of TANVEER AHMAD NAJAR Vs UNION TERRITORY OF J AND K AND ORS. (HOME DEPARTMENT) on 30 December 2022

1. The instant Letters Patent Appeal has been preferred against the order and judgment dated 05.08.2022 (for short ‘the impugned judgment) passed by learned Single Judge in WP(Crl) No. 59/2022 titled Tanveer Ahmad Najar Vs. UT of J&K & Anr., whereby the Habeas Corpus Petition, filed by the appellant-detenue herein, was dismissed for the reason that the act of the detenue relates to drug trafficking, which has posed serious threat not only to the health but welfare of the people most particularly to the unemployed youth to indulge in such nefarious acts. Aggrieved of the said order and judgment, instant appeal has been filed. order and judgment dated 05.08.2022 (for short ‘the impugned judgment) passed by learned Single Judge in WP(Crl) No. 59/2022 titled Tanveer Ahmad Najar Vs. UT of J&K & Anr., whereby the Habeas Corpus Petition, filed by the appellant-detenue herein, was dismissed for the reason that the act of the detenue relates to drug trafficking, which has posed serious threat not only to the health but welfare of the people most particularly to the unemployed youth to indulge in such nefarious acts. Aggrieved of the said order and judgment, instant appeal has been filed.

2. Case set up by the appellant herein is that the judgment impugned is bereft of any legal support and is in conflict with the established bereft of any legal support and is in conflict with the established legal position inasmuch as the appellant-detenue has to only inform the Court that his detention is bad in law, then it was the responsibility and duty of the respondents to prove before the Writ Court that all the safeguards provided under Article 22(5) of the Constitution of India have been complied with, which in the instant case has not been done. Another ground raised by the appellant is that the detenue was not provided the material upon which the respondents have made reliance, with the result the detenue was not in a position to make an effective and meaningful representation for seeking revocation of the order of detention. This question has not been considered by the learned Writ Court while passing the impugned judgment.

3. The appellant-detenue, who was facing trial in FIR No. 292 of 2016, was granted bail by the trial court and was at large and during this period no overt act or any fresh offence has been committed by the appellant-detenue and this aspect that the appellant/detenue is already on bail has neither been considered by the detaining authority nor it has been urged that despite the appellant-detenue being on bail indulged in any overt act, which warrants his detention, thus in view of law laid down by the Hon’ble Apex Court, the detention order is bad in law and is liable to be set aside, so is the judgment impugned. was granted bail by the trial court and was at large and during this period no overt act or any fresh offence has been committed by the appellant-detenue and this aspect that the appellant/detenue is already on bail has neither been considered by the detaining authority nor it has been urged that despite the appellant-detenue being on bail indulged in any overt act, which warrants his detention, thus in view of law laid down by the Hon’ble Apex Court, the detention order is bad in law and is liable to be set aside, so is the judgment impugned.

4. Mr. M.I.Qadri, learned senior counsel appearing for the appellant herein argued mainly on the ground of staleness. It is his submission that while passing the judgment impugned, it was recorded that the detenue was provided the material documents containing 19 leaves, when such documents of 19 leaves have no relevance with subject herein argued mainly on the ground of staleness. It is his submission that while passing the judgment impugned, it was recorded that the detenue was provided the material documents containing 19 leaves, when such documents of 19 leaves have no relevance with subject matter, as out of 19 leaves, 12 leaves pertain to FIR No. 292/2016, and has not proved by the respondents in last six years and thereafter there is no FIR or case lodged or filed on the subject in question against the appellant-detenue.

5. Mr. Sajad Ashraf, learned GA appearing for respondents, vehemently resisted the appeal. He has contended that the impugned judgment does not suffer from any legal infirmity and the detention order has been passed without any malice, inasmuch as safeguards provided under the Constitution of India as also the rights of the appellant-detenue have been followed while ordering his detention, as such, challenge thrown to the impugned judgment is not sustainable, hence on this score only the instant appeal merits dismissal. It is further contended that the appellant-detenue has been detained with a view to prevent him from indulging in illegal trade of Illicit Traffic in Narcotic Drugs and Psychotropic Substance after satisfying that the appellant-detenue is a great threat for sustaining the conservative values of the society. vehemently resisted the appeal. He has contended that the impugned judgment does not suffer from any legal infirmity and the detention order has been passed without any malice, inasmuch as safeguards provided under the Constitution of India as also the rights of the appellant-detenue have been followed while ordering his detention, as such, challenge thrown to the impugned judgment is not sustainable, hence on this score only the instant appeal merits dismissal. It is further contended that the appellant-detenue has been detained with a view to prevent him from indulging in illegal trade of Illicit Traffic in Narcotic Drugs and Psychotropic Substance after satisfying that the appellant-detenue is a great threat for sustaining the conservative values of the society.

6. Heard and considered.

7. The grounds of detention on which the detention order was based by the detaining authority reveals that the appellant-detenue on 23.10.2016 was found, by the police party from Police Station Kupwara, roaming in a suspicious condition and on his apprehension 07 bottles of Bio-Rex 100 ml. each and 04 bottles of Ambijest 100 ml. each, were recovered from his possession and a case was registered at Police Station Kupwara against him vide FIR No. 292/2016 for the commission of offence punishable under Section the detaining authority reveals that the appellant-detenue on 23.10.2016 was found, by the police party from Police Station Kupwara, roaming in a suspicious condition and on his apprehension 07 bottles of Bio-Rex 100 ml. each and 04 bottles of Ambijest 100 ml. each, were recovered from his possession and a case was registered at Police Station Kupwara against him vide FIR No. 292/2016 for the commission of offence punishable under Section 8/21 NDPS Act. Thereafter, a general and vague allegation has been

8/21 NDPS Act. Thereafter, a general and vague allegation has been made against him that he had been acting as a kingpin of Drug Syndicate and has been involved in the illicit trade of drugs in the district and that his activities are in an organized and well planned manner detrimental to the social and economic values. The grounds of detention, however, do not detail as to what were the subsequent activities of the appellant-detenue from the date when some drugs had been recovered from his possession on 23.10.2016. The incident of the year 2016 cannot be made to base preventive detention in the year 2022, for want of proximate link between the alleged activities of the appellant-detenue and the apprehension of the detaining authority to deter him from such activities.

8. Preventive detention being a drastic State action based only upon suspicion arising from a person’s past activity, can be allowed, as the settled legal position mandates, only if there is a live and proximate link between a person’s past activities and the need for passing of a preventive detention order. A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity. Delay in passing and execution of a preventive detention order not only defeats the very purpose of such order, but more importantly, creates a doubt as to the necessity of adopting such a harsh measure against an individual, whereby the individual’s liberty is curtailed on suspicion alone.

9. In P.U Iqbal Vs. Union of India & Ors. reported as (1992) 1 SCC 434, the, the Hon’ble Supreme Court has held as under:- 434, the, the Hon’ble Supreme Court has held as under:- “14. Now, there can be no doubt-and the law on this point must be regarded as well settled by these two decisions-that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenue, such delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate and it would be a legitimate inference to draw that the District Magistrate was not really and genuinely satisfied as regards the necessity for detaining the petitioner.

15. Chinnappa Reddy, J. speaking for the Bench in Bhawarlal Ganeshmalji v. State of Tamil Nadu has explained as follow:

It is further true that there must be a 'live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case, we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened.

18. It is manifestly clear from a conspectus of the above decisions of this Court, that the law promulgated on this aspect is that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenue, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the 'live and proximate link' between the grounds of the detention and the purpose of detention is snapped in arresting the detenue. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case.”

10. A similar view has been taken by the Hon’ble Supreme Court in Rushikesh Tanaji Bhoite Vs. State of Maharashtra & Ors.

reported as (2012) 2 SCC 72, wherein the Apex Court has observed that :- “9. In a case where detenue is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction.

10. In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenue would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority.”

11. In another case titled Vijay Narain Singh Vs. State of Bihar & Ors.

reported as (1984) 3 SCC 14, Hon’ble Apex Court has held that:- “When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.”

12. From the aforesaid enunciation of law on the subject, it is clear that unless there are fresh grounds of detention, a person cannot be put under preventive detention on the basis of the grounds of detention which have formed basis of an earlier FIR wherein he has been bailed out. The ratio laid down by the Supreme Court in the afore-cited two cases squarely applies to the facts of the instant case. Thus, the impugned judgment as well as order of detention cannot be sustained in the eyes of law.

13. For the foregoing reasons and keeping in view the above said legal position, the instant appeal is allowed and the judgment impugned dated 05.08.2022 passed in WP(Crl) No. 59/2022 is set aside and the order of detention of the appellant-detenue bearing No. DIVCOM-“K”/201/2022 dated 24.02.2022 passed by Divisional Commissioner Kashmir is, hereby, quashed. Appellant-detenue is ordered to be released from detention, if otherwise, not required in any other case(s).

14. LPA disposed of accordingly.

15. Detention Record of the case be returned back.

Srinagar 30.12.2022 Muzammil. Q

(M. A. CHOWDHARY) JUDGE

(SANJEEV KUMAR) JUDGE

Whether the order is reportable:

Yes / No