WP(Crl)/275/2019 of MUKHTAR AHMAD BHAT Vs STATE OF J AND K AND ORS. on 31 December 2020

JUDGMENT

1) Mukhtar Ahmad Bhat, the detenue, has filed this petition through his father, Abdul Jabbar Bhat, seeking quashment of order No.13/DMS/PSA/2019 dated 17.07.2019 [“the detention order”] passed by District Magistrate, Shopian [“the detaining authority”] whereby the detenue has been put under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State and lodged him in Central Jail, Kotbhalwal, Jammu. The detaining authority vide its communication dated 17[th] of July, 2019, has conveyed to the detenue that he has a right to make representation to it as well as the Government and would be entitled to be heard in person by the Advisory Board.

2) The grounds of detention claimed to have been served upon the detenue gives details of prejudicial activities of the detenue and in particular his involvement in FIR Nos.30/2018, 211/2018 and 252/2018. It is also noticed in the grounds of detention by the detaining authority that the detenue has been arrested in FIR No.252/2018 under Section 13, 39 ULA(P) Act, 506, 109 RPC and Section 7/27 Arms Act by Police Station, Shopian, and upon interrogation, the detenue has divulged shocking details of nefarious activities he had been indulging in active association with militants and Over Ground Workers.

3) In the aforesaid background, the detaining authority after deriving subjective satisfaction thought it necessary to take the detenue in preventive detention so as to prevent him from continuing with his activities calculated to endanger the security of the State.

4) The impugned detention order has been assailed by the petitioner, inter alia, on the ground that there is total non-application on the part of the detaining authority and, therefore, the so-called subjective satisfaction derived by the detaining authority on the basis of material supplied by the police is vitiated. It is argued that the detaining authority, in the grounds of detention, has mentioned that the detenue is in custody in connection with FIR No.252/2018 whereas the fact is that the detenue had since been released in the aforesaid FIR by the competent court of jurisdiction on 12[th] of February, 2019. The detaining authority has not shown any awareness about the aforesaid fact nor the relevant material supplied to it by the police included this information. The detaining authority has, therefore, been misled by the insufficiency of material supplied by the police and that has vitiated the subjective satisfaction claimed to have been arrived at by the detaining authority for issuing the impugned order of detention.

5) The impugned order has further been assailed on the ground that the relevant material i.e. police dossier, copy of the FIRs and the statement of witnesses, if any, recorded by the police, was not provided to the detenue which adversely affected his right to make an effective representation to the Government.

6) It is the further contention of the learned counsel for the petitioner that though the detenue had been enlarged on bail by the competent court of jurisdiction in FIR No.252/2018 as well as FIR No.211/2018 yet he had been kept in illegal custody by Police Station, Shopian, and the detaining authority being aware that he was in custody has not indicated any compelling reasons to pass the order for preventive detention.

7) The respondents have filed their objections and have rebutted the grounds of challenge urged in the writ petition. The allegation that the detenue was not supplied the requisite material relied upon in the grounds of detention is also denied.

Conclusion

8) Despite direction from this Court, the detention record has not been produced to enable this Court to verify the veracity of the contentions raised on behalf of the petitioner.

9) Having heard learned counsel for the parties and perused the record, I am of the considered view that the impugned order of detention is not sustainable for more than one reason. I agree with the learned counsel for the petitioner that there has been total non-application of mind on the part of detaining authority and, therefore, the subjective satisfaction derived by the detaining authority is vitiated in law.

10) I am aware that the allegations against the detenue which are detailed in the grounds of detention are of extremely serious nature and if the same are supported by relevant material, they constitute activities prejudicial to the security of the State. However, it needs to be borne in mind that preventive detention is not a substitute for punitive action which is required to be taken by the State by putting the accused of such allegations to a regular trial under substantive law. This extreme power of placing an individual under preventive detention without trial is required to be exercised with full care and caution and it is to be ensured that all safeguards, substantive or procedural, laid down in the preventive law are strictly adhered to. Any deviation from such safeguards would vitiate the detention. The liberty of an individual is too precious to be trampled with by an order which smacks of arbitrariness and total non-application of mind.

11) The petitioner has placed on record the orders of his bail passed by competent court of law and asserts that the detenue had been directed to be released from the custody but had not been released by MOHAMMAD ALTAF BHAT2020.12.31 14:08the concerned police station. The detaining authority has not shown any I attest to the accuracy andintegrity of this document awareness about this fact. It is claimed in the grounds of detention that the detenue was arrested in FIR 252/2018 but there is no mention as to whether the detenue had applied for bail or not nor there is any reference to the release ordered by the competent court of jurisdiction. No compelling reasons have been indicated in the grounds of detention which would justify detention of the detenue under J&K Public Safety Act when he could have been dealt with under substantive law of the State.

12) There is no dispute with regard to the proposition put forth by the learned counsel for the respondents that the preventive detention can be ordered even if the detenue is in custody in connection with substantive offences but in such situation the detaining authority is under an obligation to spell out compelling reasons for taking such action under preventive law. The detaining authority must indicate the apprehension that the detenue might be released on bail and if so released would again indulge in the activities prejudicial to the security of the State. Nothing of the sort is forthcoming from the grounds of detention

13) Absent the relevant detention record, this Court has no option but to even accept the plea of the petitioner that he has not been provided the requisite material relied on by the detaining authority and referred to in the grounds of detention. The counsel for the petitioner is, thus, correct in submitting that the valuable right of the detenue to make an effective representation has been jeopardized by not providing him the relevant material.

14) In view of the aforesaid, this Court does not find it necessary to advert to other grounds of challenge urged by the petitioner in support of his plea seeking quashment of the detention.

15) Viewed thus, I am of the view that the detaining authority has failed to support the detention order. Accordingly, the writ petition is allowed and the order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.

(Sanjeev Kumar) Judge Srinagar 31.12.2020“Bhat Altaf, PS”Whether the order is speaking: Yes/NoWhether the order is reportable: Yes/No