High Court · 2024

01. The petitioner has challenged the legality, propriety and correctness of impugned detention order No. 5th/DM/K/PSA of 2023 dated 01.08.2023, passed by the District Magistrate, Kishtwar under Section 8(2) of the Jammu HCP No. 67/2024 and Kashmir Public Safety Act, 1978. The order of detention has been challenged by the detenu through his son-Firdous Ahmed.

02. The District Magistrate, Kishtwar, has detained Abdul Karim Butt, S/o Late Mohd. Anwar Butt, R/o Bhadat Saroor, A/P Tangwari, Tehsil and District Kishtwar, under Section 8(2) of the J&K Public Safety Act, 1978, to prevent him from indulging in activities prejudicial to the maintenance of the security of the Union Territory (UT) of J&K.

03. As per the dossier submitted by the Sr. Superintendent of Police, Kishtwar, the detenu was involved in FIR No. 243/2019 registered under Sections 13, 18, 19, 38, and 39 of the UAPA at Police Station Kishtwar. The dossier alleged that the detenu provided logistical support and shelter to militants associated with proscribed organizations, including his brother, who was allegedly a Divisional Commander of the HM outfit.

04. The Detaining Authority, after considering the police dossier, arrived at its subjective satisfaction that detaining the detenu was necessary to prevent him from committing further offences and, accordingly, issued the detention order.

05. The impugned detention order has been assailed by the detenu on the grounds that: (i) the detaining authority has failed to provide the necessary material relied upon, such as the FIR, charge sheet, dossier, and other documents forming part of the police challan; (ii) the relevant documents were not supplied to the petitioner, rendering the detention illegal; (iii) the respondents acted with mala fide intent by suppressing the fact that the challan had already been presented and the trial was pending, thus, rendering the detention order bad in law; (iv) the detenu and his family members were unaware of their right to make a representation due to the HCP No. 67/2024 non-supply of material documents. This lack of awareness and absence of relevant information further rendered the detention arbitrary and violative of legal principles; (v) the detention order reflects non-application of mind, as it was issued mechanically to curtail the liberty of the petitioner without adherence to the provisions of the Public Safety Act, thus infringing the fundamental rights guaranteed to the petitioner under the Constitution of India.

06. The respondents have filed their counter affidavit and produced the detention record. It is submitted that the detenu, Abdul Karim Butt, was involved in activities which threaten public safety and the sovereignty of the Union Territory of Jammu and Kashmir. He was aiding and abetting members of proscribed organizations, including his brother, who is alleged to be a Divisional Commander of the HM outfit. The detenuwas working as an OGW (Over Ground Worker) actively involved in supporting anti-national elements. His activities include providing logistical support and sharing sensitive information related to security forces, particularly in areas such as Dachhan and Padder. Despite being granted bail in a prior case, it is submitted that he continued to engage in activities that are considered prejudicial to public safety and detrimental to the maintenance of public order. The Detaining Authority, thus, deemed it necessary to detain him under the Public Safety Act to prevent him from further pursuing such activities.

07. The respondents have submitted that the detention order was issued in accordance with statutory and constitutional provisions, and the grounds of detention were duly communicated to the detenu in a language HCP No. 67/2024 he understands. It is further submitted that preventive detention under the Public Safety Act was essential to prevent him from engaging in activities prejudicial to public order and that the grounds of detention are precise, proximate, pertinent and relevant and clearly substantiate the subjective satisfaction arrived at by the Detaining Authority.

08. Heard learned counsel for the parties and perused the record.

09. Perusal of the record reveals that the detenu has been detained for his activities which were found to be prejudicial to the public peace and order. In the grounds of detention, it has been stated that the detenu was involved in aiding and abetting members of proscribed organizations providing logistical support and sharing sensitive information related to movement of security forces, particularly in areas such as Dachhan and Padder and that he was enlisted as OGW of District Kishtwar in the year 2019. It is further stated that the substantive laws of the land have failed to deceit the detenu from carrying out such activities, accordingly, the order to prevent the detenu from indulging in such activities was issued.

10. The detenue has been detained while relying on FIR No. 243/2019, under Sections 13/18/19/38/39 UAPA registered in Police Station Kishtwar. The detenue has been released on bail in this FIR on 17.04.2020, but this fact has not been noticed by the detaining authority while pasing the order of detention. This clearly put forth total non-application of mind by the detaining authority which renders the detention unsustainable.

11. Similar issue has been dealt by the Hon‟ble Apex Court in case of “Anant Sakharam Raut Vs. State of Maharashtra and another” reported in AIR 1987 SC 137, and has held as under: - HCP No. 67/2024 “...We hold that there was clear non-application of mind on the part of detaiing authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith.”

12. The law on the subject is settled. If the detaining authority is apprehensive that, in case the detenu is released on bail, he may again carry on his criminal activities, then in such a situation, the authority should oppose the bail application. In the event that bail is granted, the authority should challenge such a bail order in a higher forum. 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 the judgment 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 vs. District Magistrate, Etah and others’, 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 under-trial prisoner was likely to get bail an order of detention under the Nation Security Act should not ordinarily be passed.” HCP No. 67/2024

13. Learned counsel for the detenue submits that the Detaining Authority has detained the detenue on the basis of stale grounds as there is no involvement of the detenue in any activity thereafter. The grounds on which he has been detained are cryptic and therefore, the order of detention is bad. There is merit in the submission of the learned counsel for the detenue that there is no live link between the last activity and the impugned detention order. The detaining authority has relied upon FIR No. 243/2019 while passing the impugned order, without considering that the detenu was admittedly granted bail in the said FIR, and no further activities have been alleged against the detenu. Therefore, the impugned detention order is liable to be quashed.

14. The FIR no.243/2019, on which the detaining authority has relied upon, has been lodged in the year 2019 and the bail has been granted on

17.04.2020, however, the impugned detention order has been issued after more than three years, on 01.08.2023.

15. In the present case, there is no cogent explanation coming forth 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 by the Hon‟ble Apex Court 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.

16. The determination of whether the prejudicial activities of an individual, necessitating the issuance of a detention order, are sufficiently proximate to the time the order is made, or whether the live link between the activities and the purpose of detention has been severed, depends on HCP No. 67/2024 the specific facts and circumstances of each case. However, when there is an undue and prolonged delay between the prejudicial activities and the passing of the detention order, the court must examine whether the detaining authority has provided a satisfactory and reasonable explanation for such delay. The court must also assess whether the causal link has been broken in the context of the particular circumstances of the case.

17. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed and the detention order No. 5th/DM/K/PSA of 2023 dated 01.08.2023, passed by the District Magistrate, Kishtwar, under which detenu-Abdul Karim Butt, S/o Late Mohd. Anwar Butt, R/o Bhadat Saroor, A/P Tangwari, Tehsil and District Kishtwar, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, provided he is not required in any other case.

18. Detention record be returned to the learned counsel for the respondents by the Registry forthwith. (Sindhu Sharma) Judge Jammu: 19.12.2024 Michal Sharma/PS Whether the judgment is reportable : Yes Michal Sharma I attest to the accuracy and authenticity of this document Jammu 23.12.2024 11:14