BASHIR AHMAD BEIGH v. UT OF J&K

Through: - Mr. Hakim Aman Ali, Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The petitioner, through the medium of the petition at hand, has impugned order of bearing No.36/DMB/PSA/ 2024 dated 15.07.2024, issued by District Magistrate, Baramulla, placing the detenue, namely, Bashir Ahmad Beigh under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of security of UT of J&K. 2) In the petition, it has been contended that that the allegations/the grounds of detention are vague and mere assertions, on the basis of which no prudent man can make an effective representation. It has been contended that these P a g e | 2 allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner. It has been further contended that previously the petitioner was placed under preventive detention pursuant to detention order No.111/DMB/PSA/ 2020 dated 21.10.2020 which was quashed by this Court in WP(Crl) No.171/2020 and the same was allowed by virtue of judgment dated 07.12.2021. It has been contended that without there being any fresh activities attributable to the petitioner, the impugned order has been issued on the identical grounds. It has also been contended that the alleged fresh activities attributed to the detenue are vague lacking in material particulars, on the basis of which the petitioner could not make an effective representation against the impugned order of detention. 3) The respondents have contested the petition by filing their reply affidavit, wherein it has been contended that the activities of the detenue are highly prejudicial to the maintenance of security of the State. It has been contended that the petitioner is involved in multiple FIRs and he has P a g e | 3 been at the forefront of implementing the agenda of subversive and anti-national organizations. It has been contended that after the release of petitioner from preventive detention, he was again found involved in the prejudicial activities resulting in issuance of impugned detention order; that whole of the material relied upon by the detaining authority has been furnished to the detenue and contents of the same were read over and explained to him; that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further contended in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the impugned order has been issued strictly in accordance with law. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4) I have heard learned counsel for the parties and perused record of the cases including the detention record. 5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the ground that the grounds of detention are vague and P a g e | 4 cryptic, which prevented him from making an effective representation against his detention. 6) Upon perusal of the detention record produced by learned counsel for the respondents, the ground projected regarding vagueness of the averments made in the grounds of detention, appears to be forceful. In the grounds of detention, it is mentioned that after the release of the petitioner from preventive detention upon, he tried to revive the terror ecosystem but was arrested by Police Station, Chandoosa in a pending case of 2020, in which he was admitted to bail by the court of competent jurisdiction. It is also mentioned in the grounds of detention is a well-founded apprehension that the detenue will misuse his liberty by indulging in the terrorist network. On this basis, the detaining authority has drawn satisfaction that if the petitioner is not taken into preventive custody, he may become a potential threat to the maintenance of security of the UT of J&K. The question that arises for determination is as to whether it was open to the detaining authority to pass the impugned order of detention only on the basis of the past conduct of the petitioner without there being mention of any specific fresh activity after the release of petitioner from preventive custody. P a g e | 5 7) The Supreme Court has, in the case of Rameshwar Shaw vs. District Magistrate, Burdwan & anr. (AIR 1964 SC 334), held that in deciding the question as to whether it is necessary to detain the person, the detaining authority has to be satisfied that if such person is not detained, he may act in a prejudicial manner. This conclusion can be drawn by the detaining authority in the light of the evidence placed against the said person which has to be examined by the detaining authority and an independent decision thereon has to be taken. 8) Thus, while past conduct of a detenue has to be taken into account while drawing an inference whether such person is likely to act in a manner prejudicial either to maintenance of public order or security of the State, but such conduct of the detenue should have a proximate link to the date of passing of the order of detention and the detaining authority has to draw a satisfaction that there are compelling reasons for passing a detention order against such person. 9) In the grounds of detention, no reference has been made to any specific incident involving the petitioner after his release from preventive detention in the year 2022. Thus, the gap between the previous incident, in which the petitioner was found to be involved, and the date of passing of the impugned order of detention is far too large to presume a P a g e | 6 connection between the two. The detaining authority has not mentioned as to in which prejudicial activities the petitioner has indulged either after his release on bail or after the quashment of earlier detention order. Merely making reference to involvement of the petitioner in past activities without specifically indicating anything about his involvement in fresh activities prejudicial either to the maintenance of public order or security of the State/UT which necessitated his preventive detention under Public Safety Act in terms of the impugned order, it could not have formed a compelling reason for the detaining authority to pass the impugned order of detention. Therefore, it cannot be stated that the respondents were justified in passing the impugned order of detention. 10) For the foregoing reasons, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 11) The detention record be returned to the learned counsel for the respondents. SRINAGAR 08.05.2026 “Bhat Altaf-Secy” Whether the judgment is reportable: Yes/No (Sanjay Dhar) Judge