Aashiq Hussain Narchor vs State Of Jammu & Kashmir & Ors

1) Order No.21/DMA/PSA/DET/2017 dated 25.10.2017, passed by respondent No.2 for detaining the petitioner, has been called in question in terms of the instant petition on the following grounds:

(a) The allegations/grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective representation against these allegations and can only be defended in a court of law and passing of an order of preventive detention on such grounds is arbitrary;

(b) There being no live and proximate link between the order of detention and the purpose of detention and so subjective satisfaction of the detaining authority is under cloud;

(c) The petitioner has been shown involved in various criminal cases, however, he has been discharged in these cases by the Court of law but, it appears, that the respondent No.3 while recommending the preventive detention of the detenue has not placed this material record before the detaining authority;

(d) One year is stated to have elapsed from the date of passing of the detention order and the respondents are under obligation to explain as to why the steps were not taken for execution till date. Even if it is assumed petitioner was evading arrest, then the respondents had to state as to why steps in terms of provisions of Code of Criminal Procedure were not taken;

(e) The Government had to be made known of the action taken forthwith as required in terms of Section 8 of the J&K Public Safety Act and otherwise detention order had a life of 12 days only. There, according to the petitioner, has been no approval of the Government for detaining the petitioner at a place indicated in the order;

(f) The allegations as reflected in the grounds of detention are vague and don't justify the passing of detention order on the basis of such allegations. The detaining authority has not given any reasonable justification to pass the detention order and neither the detaining authority has given the specific details about the allegations in the grounds of detention;

(g) The grounds of detention are replica of the dossier supplied by the SSP, Anantnag which clearly shows that the District Magistrate has not applied its own mind while passing the detention order;

(h) The procedural safeguards prescribed under the provisions of Public Safety Act and the rights given under Article 22(5) of the Constitution of India have not been followed;

(i) The respondent No.2 has not spelled out any compelling reasons in the grounds of detention for passing of order of detention.

(j) The qualification which the petitioner is stated to be possessive of is B. A. and the petitioner having not been able to get any government job was attending forming at his place of resident while having a family of two sons.

2) In the counter filed respondent No.2, it is being stated that the petitioner is involved in number of cases registered in Police Station, Anantnag, regarding which challans have been produced before different Courts. The petitioner is Hurriyat ideologist and was detained under Public Safety Act. On receipt of detention warrant/order for execution, the petitioner, on its knowledge, absconded and evaded his arrest by playing hide and seek policy, as a result whereof, respondents were not in a position to execute the warrant/order. Petitioner is a law violator and is a chronic separatist ideologist and is promoting enmity and hatred in the society. Petitioner is instigating the youth of the District Anantnag by way of stone pelting and strikes. Petitioner was recommended to be detained under Public Safety Act as the normal law was not sufficient to deter him from illegal and unlawful activities. The petitioner is an active anti-national element. In support of the stand taken in the counter affidavit, reliance has been placed on the judgments of the Hon'ble Apex Court in "Deepak Bajaj v. State of Maharashtra and anr" (AIR 2009 SC 628) and "Additional Secretary to Govt. of India & ors v. Smt. Alka Subash Gadia & anr" reported in 1992 Suppl (1) SCC 496".

3) In para 5 (b) of the writ petition, as highlighted by the learned counsel for the petitioner, it is averred that order of detention has to be approved within a period of twelve days from the date of passing of the order of detention and beyond said period, order cannot be executed and since more than twelve days have already elapsed from the date of its passing, same having not been approved, cannot be executed now.

4) Detention record produced by the respondents reflects the impugned order having been passed on 25.10.2017 but nothing has been brought on record from which it could be inferred that the approval has been accorded by the Government in terms of Section 8(4) of the J&K Public Safety Act for detaining the petitioner herein in terms of provisions of the Act. In the counter affidavit too, the plea taken at para 5(b) has not been commented upon or any explanation tendered in this regard. It would be proper herein to quote sub-section (4) of Section 8 of the J&K Public Safety Act:

"When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government."

5) Nonetheless, the fact that the impugned order may not have been executed due to conduct of the petitioner, the detaining authority could not evade the obligation caste upon it in terms of above referred provision and for this alone, the impugned order is rendered bad in the eyes of law. It would be quite appropriate herein to refer to the observations made by the Hon'ble Apex Court in Deepak Bajaj's case (supra):

"If a person against whom a prevention detention order has been passed can show to the Court that the said detention order is clearly illegal why should he be compelled to go to jail? To tell such a person that although such a detention order is illegal he must yet got to jail though he will be released later is a meaningless and futile exercise."

6) For what has been stated above, petition is allowed. Respondents are directed not to take the petitioner in preventive custody in pursuance of impugned detention order as the same being non-est in the eyes of law.

7) Detention records, as produced, be returned to the learned counsel for the respondents.