Ghulam Abass vs Union Territory of J&K and others

Vinod Chatterji Koul, J

Through the medium of this petition, the petitioner seeks quashment of Order no.15/DMP/PSA of 2024 dated 17.05.2024, passed by District Magistrate, Poonch– respondent no.3, (for short “detaining authority”) placing the detenu namely Ghulam Abass & Gammi S/o Lal Hussain R/o Ward no.5, Moori Gursai Tehsil Mendhar District Poonch (for brevity “detenu”) under preventive detention to prevent him from acting in any manner prejudicial to security of the Indian State as well as UT of J&K, on the grounds made mention of therein.

Respondents have filed the reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of the State. The activities narrated in the grounds of detention have been reiterated in the reply/counter 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.

I have heard learned counsel for parties and considered the matter.

Learned counsel for the petitioner states that three FIRs relied upon by the detaining authority are of the year 2003, 2014 and 2016 which have no nexus with the impugned order inasmuch as there is no nexus, proximate and live link between the allegations levelled in the grounds of detention as the last activity referred to and attributed to detenu are of the years 2003, 2014 and 2016. According to him, interestingly, detenu has been acquitted in all these three FIRs and reliance on these FIRs reflects and shows non-application of mind on the part of detaining authority, more particularly when such FIRs could not have been relied upon by detaining authority because of the fact that FIR no.27/2014 of police station Gursai had been compounded as complainant and accused therein had settled the matter in Lok Adalat by entering into compromise and in such situation, the allegations contained in FIR no.27/2014 cannot be said to have attracted the activities of the detenu prejudicial to security of the State. He also states that another FIR no.49/2016 was also compounded as the complainant/originator of FIR had entered into compromise with detenu and as a result whereof FIR was compounded in Lok Adalat inasmuch as complainant made a statement that he had resolved all his disputes with accused/detenu and did not want to continue further litigation. These important facts are missing from grounds of detention and, therefore, vitiates impugned order of detention. The material and the vital facts of acquittal in the above FIRs, have not been placed before the detaining authority which would have swayed the mind and subjective satisfaction of the detaining authority; the detention order is passed in total vague and arbitrary manner as such, deserves to be quashed.

Learned counsel for petitioner has rightly stated that the detaining authority has not followed the Constitutional and statutory procedural safeguards as envisaged under Article 22 (5) of the Constitution read with Section 13 of the J&K Public Safety Act, 1978. The grounds of detention are vague and non-existent in the eye of law. His further submission is that there is no nexus, proximate and live link between the allegations levelled in the grounds of detention as the last activity referred to and attributed to detenu is of the years 2003 and 2004, and that imminent threat to the security of the State could not, thus, be deduced possible and preventive detention of the detenu necessitated.

The 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.

The 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.”

It may be mentioned here that delay in passing order of detention from the date of proposal snaps the “live and proximate link” between prejudicial activities and purpose of detention and failure on the part of detaining authority in explaining such delay in any manner vitiates detention. If detaining authority remains oblivious of the fact that in the criminal case(s) relied upon by it for purpose of passing order of detention the detenu was ordered to be released on bail by the court or discharged/acquitted by the court of law and do not make any whisper about such a fact in grounds of detention, such omission and non-mention of the important fact again vitiates the order of detention.

The Supreme Court in Asha Devi v. Additional Chief Secretary to the Government of Gujarat and Anr., 1979 Crl LJ 203, pointed out that:

“... if material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal.”

In Sk. Nizamuddin v. State of West Bengal, (1975) 3 SCC 395, the Supreme Court observed as under:

“We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. The circumstance might quite possible have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate.”

From the above decisions, it appears that the requisite subjective satisfaction, the formation whereof is a condition precedent in passing a detention order will get vitiated if material or vital facts having bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind, are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order.

When in the present case, grounds of detention are examined, it would nowhere mention whether detenu was after his apprehension in connection with aforementioned three FIRs, released on bail and/or thereafter acquitted from the said cases, which reflects and depicts non-application of mind on the part of detaining authority. Thus, there is no compelling reason coming forth from the grounds of detention to show that detenu was likely to be released from custody in near future and taking into account the nature of antecedent activities of detenu, it was likely that after his release from custody the detenu may indulge in prejudicial activities and it was necessary to detain him in order to prevent him from engaging in such activities. As a result whereof, impugned order is vitiated and requires to be quashed, as such.

For the reasons discussed above, the petition is disposed of and detention Order no.15/DMP/PSA of 2024 dated 17.05.2024, passed by District Magistrate, Poonch, is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.