HCP 45/2024 v. Union Territory of Jammu and Kashmir

Through: Mr. Ilyas Laway, GA CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE J U D G M E N T

1. In the instant petition, the detenue through his father has challenged and sought quashment of the detention order No. 03/DMA/PSA/DET/2024 dated 11.01.2024 (for short “impugned order”) issued by respondent No. 2 by virtue of which the detenue has been detained under the provisions of Public Safety Act and lodged in Central Jail, Kotbhalwal, Jammu. BRIEF FACTS

2. The detenue Tawseef Ahmad Sofi is stated to have been arrested on

11.01.2024, in connection with his involvement in subversive activities in the year 2016. The detenue has been detained for being an Over Ground Worker (OGW) of banned terrorist organization Lashkar-i-Toiba outfit. The detenue is also stated to have been associated with an OGW Bariq Arsalan, a resident of Nai Basti, Anantnag. 2

3. The alleged activities of the detenue have been found to be a threat to the security of the State/Union Territory of Jammu & Kashmir, therefore, the Respondent No. 2 has exercised the power of preventive detention against the detenue by virtue of the impugned order.

4. The impugned order is questioned by the petitioner primarily on the grounds that the detenue is a peace loving citizen and is living a normal life without being involved in any of the activities that may disturb the peace and tranquility of the State/Union Territory of Jammu & Kashmir; that the detenue is alleged to be involved in activities allegedly carried out by him in the year 2016; the FIR mentioned in the grounds of detention being FIR No. 219/2022 registered by Police Station, Anantnag in terms of Sections 120B, 130 IPC, 18, 39 UA(P) Act is not reflecting the name of the detenue anywhere, therefore, the impugned order is an outcome of non-application of mind on the part of the detaining authority-Respondent No. 2; the detenue has neither been provided with the entire material, on the basis of which his detention has been ordered, to enable him to move an effective representation against his detention nor has the material been read over to the detenue in the language he understands.

5. Upon notice, the respondents appeared and filed counter affidavit resisting the claim of the petitioner. The respondents in their counter affidavit specifically mentioned that the respondents while issuing the impugned order have followed the procedural safeguards as envisaged in law in letter and spirit and the impugned order has been issued after proper application of mind. The respondents have further mentioned that the detenue did file a representation against his detention and the contents of the warrant were explained and read over to him in the language he understands viz; Urdu/Kashmiri.

6. I have heard learned counsel for the parties and perused the material made available including the detention records produced by learned counsel for the respondents.

7. The learned counsel for the petitioner submitted that the allegations against the detenue are vague and the material forming basis for the detention has not been provided to the detenue to enable him to move an HCP 45/2024 3 effective representation against his detention. The learned counsel further submitted that the respondents do not justify as to why and how the substantive law was not sufficient to deter the detenue from indulging in the subversive activities. The learned counsel further submitted that the impugned order is issued in the year 2024 when as a matter of fact the alleged activities attributed to the detenue are of the year 2016 or even for that matter of the year 2022. The learned counsel submitted that the detenue cannot be put under preventive detention on the basis of stale incidence. Learned counsel in support of his submissions referred to and relied upon the judgments delivered in cases titled “Rekha vs State of Tamil Nadu and Anr” reported as 2011 SCC (4) 260 and “Sama Aruna vs State of Telangana and Anr” reported as 2018 12 SCC 150.

8. On the other hand, learned counsel for the respondents while defending the action of the respondents, has submitted that it is not the number of acts that may form a ground for the detention of the detenue but the sufficiency of the material and the effect of an act and its outreach and impact upon the society that the detaining authority should take into account in ordering the preventive detention of an individual.

9. Considered the submissions made.

10. The material placed on record including the detention order and the grounds of detention prepared by the police concerned against the detenue reflects that the detenue has been involved in some subversive activities in the year 2016. The other purported allegation against the detenue is his involvement in case FIR No. 219/2022 registered by Police Station, Anantnag in terms of Sections 120B, 130 IPC, 18, 39 UA(P) Act. The impugned order has, admittedly, been issued in the year 2024 i.e., approximately 08 years after the alleged involvement of the detenue in the year 2016 and 02 years later the date of the registration of FIR No. 219/2022. Learned counsel for the petitioner, thus, is justified in submitting that the detenue is not alleged to have committed any fresh activity commencing with or nearer to the date of impugned order. In that way, there is no nexus between the alleged activity of the detenue and the date of preventive detention as the live link and the proximity between the two is absolutely missing. HCP 45/2024 4

11. Insofar as the submission of the learned counsel for the petitioner in respect of the filing of the representation and making him understand the material in the language he understands, are concerned, the same have been sufficiently explained by the respondents in the counter affidavit, and in terms of the material placed on record which demonstrates that the father of the detenue i.e., the petitioner had moved a representation against the detention of the detenue which has been considered as well. The court is also satisfied that the respondents have read over and explained the detention order and other relevant material to the detenue in the language he understands, there being a receipt placed on record to that extent.

12. Having said that the court is also convinced that the detenue has been detained for his involvement in the alleged activities carried out in the year 2016 and the impugned order has been issued 08 years later in time of such alleged activities. The impugned order, in the circumstances, cannot withstand the test of law as the Apex Court has strongly laid down that the detention orders must not be based on stale incidences.

13. The Apex Court in case titled ‘Ameena Begum Vs. State of Telangana and Others (2023 9 SCC 587)’ has held that the order of detention must not be based upon stale events. It would be profitable to reproduce the paragraph-17 of the said judgment herein as: “In a different context, we may take note of the decision in Sama Aruna vs. State of Telangana11 where, S.A. Bobde, J. (as the Chief Justice then was) while construing the provisions of the Act, held: “16. There is little doubt that the conduct or activities of the detenu in the past must be taken into account for coming to the conclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities. But the question is how far back? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account.” In holding that the order of detention therein was grounded on stale grounds, the Court held that HCP 45/2024 5 “The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.”

14. The Apex Court in another case titled ‘Khawaja Bilal Ahmed Vs. State of Telangana (2020) 13 SCC 632, has held that the Detaining Authority has not to delve into the history of cases involving the detenue but prevent him doing something that is against the public order or the security of the state and in doing so the Detaining Authority has to arrive at the subjective satisfaction based on the activities, the detenue is indulging in and may continue to do in future. It would be profitable to reproduce Para- 23 of the said judgment herein as under: “23. If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future” (Emphasis supplied)

15. The FIR, mention whereof is made in the grounds of detention bearing FIR No. 219/2022 registered by Police Station, Anantnag for the commission of offences under Sections 120B, 130 IPC, 18, 39 UA(P) Act, on the showing of the respondents itself is registered against the HCP 45/2024 6 inmates lodged in different jails not connecting the detenue directly or indirectly in any way. This again reflects the non-application of mind on part of the detaining authority.

16. In view of what has been said hereinbefore, the instant habeas corpus petition is allowed. The impugned order No. 03/DMA/PSA/DET/2024 dated 11.01.2024 whereby the detenue namely Tawseef Ahmad Sofi S/o Manzoor Ahmad Sofi R/o Azadpora, Anchidora, Anantnag has been detained, is quashed. The detenue is directed to be released from preventive detention forthwith, if not required in any other case.

17. Disposed of.

18. Registry to return the detention records to learned Government Counsel against receipt. (MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR 04.04.2025 AAMIR (PS) Whether approved for reporting No Amir Rashid Sofi I attest to the accuracy and authenticity of this document

04.04.2025 16:49 HCP 45/2024