Sahil Ahmad Hurra v. Union Territory of J and K and Ors. (Home)

JUDGEMENT

¶1Through the medium of this petition, Order no. DMB/PSA/10 of 2025 dated 29.04.2025 (impugned detention order) passed by District Magistrate, Budgam – respondent no. 2, (for short "detailing authority") whereby detenu, namely, Sahil Ahmad Hurra, S/o Muzzafar Ahmad Hurra R/o Tilsara, Charar I Sharief, District Budgam has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State, is sought to be quashed and the detenu set at liberty on the grounds made mention of therein.

¶2Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the UT and, therefore, his remaining at large is a threat to the security of UT of J&K. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied

upon by the detaining authority, was provided to the detenu at the time of execution of warrant.

¶3I have heard learned counsel for parties and considered the matter. I have gone through the detention record produced by the counsel appearing for respondents.

¶4The case set up by the petitioner in the petition is that the detenu was initially booked in FIR No.83/2020 registered at Police Station, Charar-e-Sharief U/S 18, 19, 23 and 38 of the Unlawful Activities (Prevention) Act 1967 when he was a juvenile as is evident by the Release Order/Docket dated 24th August, 2020 issued by the Juvenile Justice Board, Budgam, which granted bail to the detenue with conditions to be fulfilled by his guardian (petitioner) inasmuch as the detention order relies solely on FIR No. 83/2020 and beyond the said FIR, no concrete evidence of recent unlawful activities has been provided, even repeated bound downs mentioned in the grounds of detention i.e. 22.01.2024, 02.03.2024, 02.05.2024, 13.05.2024, 20.06.2024, 10.01.2025 and 19.03.2025 as administrative measures do not constitute proof of ongoing criminal actions. Further, the allegations mentioned in the grounds of detention have no nexus with the detenu and the detaining authority has not given any reasonable justification to pass the impugned detention order. It is being stated that the allegations leveled in the grounds of detention are vague, irrelevant and non–existent as no date, month or year has been reflected in the grounds of detention. The detaining authority has not applied its mind to the facts of the case but has acted on the report submitted by Sr. Superintendent of Police, Budgam, It is alleged in the grounds of detention that the detenu with other terrorist cadres are bent upon to revive terrorist activities to disturb the public peace and order in the area, and also providing them logistic support, shelter and other assistances, however, he has no connection with any terrorist organization. The said allegations are vague, imaginary and without basis. It is also averred that the detenu is neither associated with any organization nor involved in any such activity which is prejudicial to the security of the State.

¶5It is also contended that detaining authority has mentioned in grounds of detention involvement of detenu in unlawful activities and was accordingly bound down several times but has not furnished the material, relied upon by it, to detenu to enable him to make an effective representation by giving his version of facts attributed to him and make an attempt to dispel the

apprehensions nurtured by detaining authority concerning involvement of detenu in alleged activities. It is being also stated that the grounds of detention are replica of dossier and unequivocally reflects and shows non-application of mind on the part of the detaining authority and there is no live link between the last activity and the impugned order of detention inasmuch as FIR No.83/2020 has been taken into account by detaining authority while passing order impugned, unmindful of the fact that detenu has been bailed out in the said FIR in which he was also a juvenile and there have been no further activities alleged against detenu.

¶6On the contrary, Mr. Bikramdeep Singh Dy.AG, while opposing the submission of Mr. M. Amin Khan, would vehemently contend that the order under challenge has been passed by the detaining authority validly and legally owing to the activities of the detenu being prejudicial to the security of the State.

¶7Taking into account the rival contentions of parties and submissions made by learned counsel for parties vis-à-vis furnishing of the material relied upon by detaining authority, it would be relevant to go through the detention record produced by counsel for respondents. The detention record, inter alia, contains "Execution Report" and "Receipt of Grounds of detention". It would be advantageous to reproduce relevant portion of Execution Report hereunder: "The copy of grounds of detention (02 leaves), PSA warrant (01 leaf) Dossier (0) leaves alongwith copies of FIRs, and other documents (17) leaves) have been served upon the said detenu….."

¶8It would also be appropriate to reproduce relevant portion of "Receipt of Grounds of Detention" herein: "Received….. Grounds of detention (02 leaves), PSA warrant (01 leaf) Dossier of detention (0) FIRs/ and other documents

(17) leaves through executing officer...…."

¶9Thus, it is evident from perusal of Execution Report and Receipt of grounds of detention that only 17 leaves have been given to detenu and rest of the documents including dossier upon which subjective satisfaction has been arrived at by detaining authority has not been furnished to detenu.

¶10Perusal of impugned detention order reveals that on the basis of dossier placed before detaining authority by Senior Superintendent of Police, Budgam, vide no. PSA Cell/Dossier/2025/550-552 dated 26.04.2025, detaining authority

was satisfied that with a view to prevent detenu from acting in any manner prejudicial to the security of the State, it was necessary to detain him under necessary provisions of law. So, it is on the basis of dossier and other connected material/documents that impugned detention order has been passed by detaining authority. Perusal of grounds of detention gives reference to various alleged activities of detenu that appears to have weighed with detaining authority, while making detention order. The detention record, as noted above, does not indicate that copies of related relevant material including dossier were ever supplied to detenu, on the basis whereof impugned detention order has been passed. The aforesaid material, thus, assumes importance in the facts and circumstances of the case. It needs no emphasis, that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If detenu is not supplied the material, on which the detention order is based, he will not be in a position to make an effective representation against his detention order. The failure on the part of the detaining authority to supply the material, relied at the time of making the detention order to the detenu, renders the detention order illegal and unsustainable. In this regard ,I may draw support from the law laid down in the cases of Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of J&K & ors, 2009 (I) S.L.J 219.

¶11The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22 has held that it is only the procedural requirements, which are the only safeguards available to the detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of the detaining authority. In the present case, the procedural requirements, as discussed above, have not been followed and complied with by the respondents in letter and spirit and resultantly, the impugned detention needs to be quashed.

¶12The question whether the prejudicial activities of a person requiring to pass a detention order is proximate to 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. Nonetheless, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case. Certainly, in the present case, there is no cogent explanation coming to fore from perusal of the grounds of detention with reference to the live-link between the prejudicial activities and the purpose of the detention and resultantly the impugned detention order is liable to be quashed. In this regard reference is made to the law laid down in T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajinder Arora v. Union of India and others (2006) 4 SCC 796].

¶13The law on the subject is settled. If detaining authority is apprehensive that in case detenu is released on bail he may again carry on his criminal activities, then in such situation, the authority should oppose the bail application and, in the event, bail is granted, the authority should challenge such a bail order in the higher forum and that merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed. Para 24 of judgement passed in Sama Aruna v. State of Telangana and another, AIR 2017 SC 2662, reads as under: "24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav V. District Magistrate, Etah and Ors., this court observed as follows: "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground

that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the Nation Security Act should not ordinarily be passed."

¶14There is force in the submission of learned counsel for petitioner that there is no live link between the last activity and the impugned order of detention inasmuch as FIR No.83/2020, has been taken into account by detaining authority while passing order impugned, unmindful of the fact that detenu has been bailed out in the said FIR and there have been no further activities alleged against detenu. Resultantly, impugned order of detention is liable to be quashed.

¶15Based on the above discussion, the petition is disposed of and Detention Order no. DMB/PSA/10 of 2025 dated 29.04.2025, passed by District Magistrate, Budgam against the detenu, is quashed. As a corollary, respondents are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of. (Vinod Chatterji Koul) Judge Srinagar

05.12.2025 (Qazi Amjad , Jt Reg. /Secy.) Whether approved for reporting?

QAZI AMJAD YOUSUF authenticity of this document

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … Reserved on: 25.11.2025 Pronounced on: 05.12.2025 Sahil Ahmad Hurra,Aged 22 years S/o Muzzafar Ahmad Hurra R/o Tilsara, Charar I Sharief, District Budgam through his father ……. Petitioner(s) Through: Mr. M. Amin Khan & Mr. Waheed Ahmad, Advocates Versus 1. Union Territory of J&K through Principal Secretary, Home Department , J&K Govt. Civil Sectt. Srinagar/Jammu 2. District Magistrate, Budgam 3. Sr. Superintendent of Polic Budgam 4. Superintendent , District Jail, Bhaderwah. .…Respondent(s) Through: Mr. Mudasir Majid Malik, Dy AG CORAM: HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE