Imtiyaz Ahmad Dar v. Union Territory of J and K and Anr. (Home Department)

JUDGEMENT

¶1Through the medium of this writ petition, the petitioner prays for quashment of detention Order No.01/DMK/PSA/2023 dated 22.06.2023, passed by District Magistrate, Kulgam, whereby detenu, namely, Imtiyaz Ahmad Dar S/o Mohammad Yoqoub Dar R/o RedwaniPayeen District Kulgam, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security, sovereignty and integrity of State, and directing his lodgement in Central Jail, Srinagar,on the following grounds:-

i) that detenu was earlier detained in 2022 vide Order No.04/DMK/PSA/2022 dated 29.93.2022 on the basis of his alleged involvement in FIR Nos.35/2018 & 67/2018. He challenged it in WP(Crl) No.187/2022. The said detention order was quashed vide judgement dated 29.03.2023, but instead of releasing detenu, he has been detained him by virtue of impugned order on the same and similar grounds.It is stated that detenu is neither involved in any fresh FIR nor in any fresh prejudicial activity, as such, impugned detention order is in violation of Article 22(5) of Constitution of India and deserves to the quashed;detaining authority has passed the impugned detention order mechanically without application of mind;

ii) that the allegations made in the grounds of detention are vague and non-existent and detaining authority has not followed constitutional and statutory procedural safeguards as provided under Article 22 (5) of the Constitution of India;

iii) that the detenu has never associated himself with any terrorist organization and has also no connection with any terrorist organization and he has never acted on the directions and signals of any persons whether inside or outside the Union Territory and that the detenu has never provided any logistic support or transported any arms of any person from one place to another and the

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detenu is not an OGW and is not in touch with any organization.

iv) that the allegations levelled against the detenu is of year 2018 when he was a juvenile and in view of the law laid down under Juvenile Justice Act, he cannot be subject to any disqualification for any allegation which he is alleged to have committed as a Juvenile inasmuch as there is no fresh activity attributed to him post 2018, as such, allegations will not legally justify the passing of detention order against the detenu.

v) that the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite for him before passing any detention order which clearly depicts the non-application of mind on the part of detaining authority.

vi) that grounds of detention do not disclose any activity on the basis whereof order of detention can be passed and it appears that impugned detention order has been passed against detenu due to mistaken identity and misinformation;

vii) that detaining authority has not assigned any compelling and cogent reason for passing order of detention.

¶2Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are prejudicial to the security, sovereignty and integrity of the State, and that 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 the parties and considered the matter.

¶4Though various submissions have been made by counsel for petitioner, yet intriguingly an important aspect of the matter has been brought before this Court during the course of advancement of arguments. He has invited attention of this Court to impugned order of detention, particularly first line thereof and thus, it would be relevant to reproduce the same hereunder:

"Whereas, on the basis of grounds of detention placed before me by the Superintendent of Police Kulgam……"

¶5From the above, it is palpably apparent that detaining authority has mentioned that it is "on the basis of grounds of detention placed before" him "by the Superintendent of Police Kulgam" that he is satisfied to place detenu under preventive detention.

¶6It is important to mention here that detaining authority may get inputs from

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different agencies, including Senior Superintendent of Police concerned, but formulation of grounds of detention is exclusive responsibility of detaining authority. It is the detaining authority, who has to go through reports and other inputs received by him from concerned police and other agencies and on such perusal,it has to arrive at a subjective satisfaction that a person is to be placed under preventive detention. It is, therefore, for detaining authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of order of preventive detention. However, in the instant case, it is evident from impugned order of detention that grounds of detention have not been prepared by detaining authority and resultantly impugned detention order is vitiated.

¶7Another question that has been raised by counsel for petitioner is whether prejudicial activities of a person necessitating passing of a detention order is proximate to time when the order is made or live-link between the prejudicial activities and 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 passing of detention order, the court has to scrutinize whether detaining authority has satisfactorily examined such a delay and given 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. Undoubtedly, in the present case, there is no cogent explanation coming to fore from perusal of the grounds of detention with reference to live-link between prejudicial activities and purpose ofdetention and resultantly impugned detention order is liable to be quashed. In this regard reference is made to 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].

¶8Based on the supra discussion, Detention Order No.01/DMK/PSA/2023 dated 22.06.2023, issued by District Magistrate, Kulgam, against detenu is quashed. Respondents, including Jail Superintendent concerned, are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.

(Vinod Chatterji Koul) Judge SRINAGAR

24.12.2024 (Qazi Amjad Secy.) Whether approved for reporting? No

Page 1 HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT SRINAGAR HCP No.09/2023 Reserved on: 12.12.2024 Pronounced on: 24.12.2024 Imtiyaz Ahmad Dar ……...Petitioner(s) Through: Mr. Wajid Haseeb, Advocate Versus Union Territory of J&K and anr ……...…Respondent(s) Through: Mr. Bikramdeep Singh. Dy. AG CORAM: HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE