Nazir Ahmed v. Union Territory of Jammu and Kashmir

Judgment

1. Union Territory of Jammu and Kashmir through Commissioner- cum Secretary to the Government, Home Department, Civil Secretariat, Jammu

2. The District Magistrate, Kathua 3. Senior Superintendent of Police, Kathua. 4. Incharge, Central Jail, Kotbhalwal, Jammu. ….Respondent(s) Through :- Mr. Suneel Malhotra, GA CORAM: HON’BLE MS.JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT (oral)

05.06.2025

In the instant petition, the detenue herein, has challenged Order No. PSA/138 dated 16.01.2025 issued by the District Magistrate, Kathua (hereinafter referred to as the “detaining authority”), by virtue of which the detenue has been detained under preventive detention in terms of the provisions of Section 8(1) (a) of J&K Public Safety Act, 1978 in order to prevent him from acting in any manner prejudicial to the maintenance of public order. 2

02. Six FIRs being FIR Nos. 230 under Section 188 RPC, 236/2010 under Section 341/323 RPC, 46/2021 under Section 307/341/325/34 IPC, 10/2024 under Section 188 IPC, 20/2024 under Section 188 IPC and FIR No.264/2024 under Section 223 BNS came to be registered against the detenue. Proceedings emanated from FIR Nos.230/2010, 236/2010 & 10/2024 stand closed by the competent Court of jurisdiction. In rest of the FIRs criminal proceedings are pending before the Court(s), however, the detenue has been granted bail.

03. According to the grounds of detention, the detenue has no respect for the law of the land. The detenue is involved in bovine smuggling and has created terror among the peace loving people or the area in general and particularly in District Kathua. It is stated that the detenue’s actions are such a brazen and provocative nature so as to create an environment of insecurity and terror, severely endangering public peace, tranquility and communal harmony, which necessitate stringent preventive measures.

04. The contention of the detenue is that the present detention order is an act of abuse of power by the respondent No.2. It is stated that the detention of the detenue under preventive detention is illegal, arbitrary and without any lawful jurisdiction. The detenue, as such, has challenged the impugned order inter alia on the following grounds:- a) That the impugned order of detention has been issued by the detaining authority in an unreasonable, arbitrary and mala fide manner. b) That the impugned detention order and grounds of detention suffer from total non-application of mind. 3 c) That the grounds of detention are a verbatim copy of the dossier prepared by the police authorities. The detaining authority has failed to record its subjective satisfaction before order detention of the detenue in preventive detention. d) That the detenue has been denied of his constitutional right guaranteed under Article 22(5) of the Constitution of India as the whole material relied on by the detaining authority has not been provided to him, thus, disabling him to make an effective representation. e) The petitioner was not informed of his right to make an effective representation to the detaining authority against the detention order f) That there is unreasonable and unexplained delay of more than two months in the execution of the impugned detention order. g) The representation submitted by the detenue through his son has not been decided by the respondents.

05. Per contra, the respondents in their counter affidavit have stated that keeping in view the continuous involvement of the detenue in illegal and criminal activities, he was detained under the J&K Public Safety Act, 1978. It is stated that the detenue is a criminal minded person involved in a number of anti-national activities and, as such, is a threat to the life and liberty of the people. The activities of the petitioner are prejudicial to the safety and security of the public in general and as a result, safety and security of the public has become very difficult. According to the respondents, there is strong apprehension that the detenue would indulge into more criminal activities and endanger the public peace and tranquility in the area if his liberty is not curtailed. It is further stated that every norm has been followed while detaining the detenu. 4

06. It is further stated that at the time of execution of detention order, the executing officer had provided the relevant documents along with detention warrant, grounds of detention and along with other documents (total 81 leaves) and had explained the same to the detenue in Hindi/Dogri language, which he understood fully, informed him about his right to make representation before the Government (Home Department) against the detention order. Respondents have also placed on record the execution report, and confirmation of detention order by Home Department after seeking opinion of the Advisory Board.

07. Heard learned counsel for the parties and perused the material on record including the detention record produced by the learned counsel for the respondents.

08. The impugned order of detention has been assailed on numerous grounds but learned counsel for the detenue has laid stress on the ground that there is un-explained delay in execution of detention order which has rendered the detention of the detenue unsustainable and (ii) that the representation submitted by the detenue against his detention has not been considered. Learned counsel for the detenue has relied on judgments of the Supreme Court in the case of A. Mohammaed Farook v. Jt. Secy to .GOI and others, (2000) 2 SCC 360 and Sarabjeet Singh Mokha v. District Magisitrate Jabalpur and others, (2021) 20 SCC 98 to substantiate his arguments. Learned counsel has also relied upon a judgment of this Court in the case of Imtiyaz Ahmed v. UT of J&K and others, HCP No.15/2024 decided on

05.11.2024 to argue that unreasonable and unexplained delay in executing the 5 detention order would vitiate the detention order unless such delay is sufficiently explained.

09. Mr. Suneel Malhotra, GA on the other hand submits that the detnue is a hardcore/habitual criminal and has been involved in various criminal offences by blatantly violating the rule of law indulging in bovine smuggling and other criminal activities and has spread a reign of terror amongst the peace-loving people of the area and his anti-social activities are pre-judicial to the maintenance of public order and had he been let free, there would have been every likelihood of his indulging again in criminal activities. He further submits that the procedural safeguards prescribed under the provisions of Public Safety Act and the rights guaranteed to the detenue under the Constitution have strictly been followed in the instant case. The detenue has been furnished all the material, as was required, and was also made aware of his right to make representation to the government, against his detention. Learned counsel for the respondents has referred two judgments of this Court in the cases of Shakeel Mohd. v. UT of J&K and another, HCP No.55/2024 decided on 21.11.2024 and Sher Mohd. v. UT of J&K and others., HCP No.136/2024 decided on 05.50.2025.

10. The law is well settled that an unreasonable and unexplained delay in executing the detention order will vitiate the detention order, unless such delay is sufficiently explained by the detaining authority. The Supreme Court in various judgments has laid down that if a detenue satisfies that there has been an unexplained delay in execution of the detention order, then such an order 6 would be interpreted as breaking the live-proximity link in between the event of detention and passing of the detention order.

11. The Supreme Court, while dealing with the issue of delay in execution of the detention order, in the case of Mohammed Farook (supra), has in paragraph No.9 observed thus:- “9. There is a catena of judgments on this topic rendered by this Court wherein this Court emphasized that the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated. Since the law is well settled in this behalf we do not propose to refer to other judgments which were brought to our notice.”

12. This Court in Imtiyaz Ahmed (supra) after considering the various decisions of the Supreme Court on the issue of delayed execution of the detention order in paragraph No.22 of the judgment held thus:- “22. From the above decisions of the Supreme Court, it becomes crystal clear that when there is no proximity or live link between the passing of the detention order and date of arrest of the detenue, it would render the detention order ineffective unless such delay is satisfactory explained.”

13. The Supreme Court in the case of Nenavath Bujji vs The State Of Telangana, (2024) 3 SCR 1181, after surveying case law on the subject and considering its earlier decisions, concluded thus: “ i) The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction, (ii) It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant & remote, (iii) There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the 7 detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated, (iv) In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction. The anxiety of the Court should be to ascertain as to whether the decision-making process for reaching the subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind, (v) While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention, (vi) The satisfaction cannot be inferred by mere statement in the order that “it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order”. Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction, (vii) Inability on the part of the state’s police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention, (viii) Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by reason(s) / grounds(s) not furnished to the detenu. The decision of the authority must be the natural culmination of the application of mind to the relevant and material facts available on the record, and (ix) To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must, first examine the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention . For passing a detention order based on subjective satisfaction, the answer of the aforesaid aspects and points must be against the prospective detenu. The absence of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority.”

14. Coming to the facts of the instant case, the record indicates that the detention order, which was passed on 16.01.2025, came to be executed

17.03.2025 i.e. after two months. No explanation muchless the sufficient 8 reason has been offered by the respondent to justify the delay in execution of the detention order. If the real intent of the impugned order of detention was to prevent the detenue from acting any manner prejudicial to the public peace and order the respondents should not have waited for two months to execute the detention order. It appears that no serious effort has been made by the respondents to execute the detention order, which casts doubt on the subjective satisfaction drawn by the detaining authority. Once there was delay in execution of the warrant of detention and no explanation is coming forth from the respondents for having delayed the execution of the detention order for two months, the order of detention would be construed as breaking the live proximity link between the event of detention and order of detention, which casts doubts on the genuineness of the subjective satisfaction of the detaining authority and vitiates the detention order. In view of the law laid down by the Supreme Court in Nenavath Bujji (supra), satisfaction cannot be inferred by mere statement in the order that “it was necessary to prevent the detenue from acting in a manner prejudicial to the maintenance of public order.

15. The judgments referred to by the learned counsel for the respondents are of no help to the respondents as there is no live-proximity link between the arrest of the detenue and the order of detention, which vitiates the detention order. As such, the detention of the detenue in terms of the impugned detention order becomes illegal.

16. In the premises, this petition succeeds. Impugned detention order No.PSA/138 dated 16.01.2025, issued by the District Magistrate, Kathua is 9 quashed. The detenue is directed to be set at liberty forthwith, if not required in any other case.

17. Record be returned to Mr. Suneel Malhotra, learned counsel for the respondents. Jammu: 05.06.2025 Vinod )(Moksha Khajuria Kazmi) Judge Whether the judgment is reportable: No Vinod Kumar 2025.06.06 12:34 I attest to the accuracy and integrity of this document