J&K HC | [Jamat-i-Islami] HC quashes preventive detention order holding opportunity to effective representation an essential pre-requisite

Jammu and Kashmir and Ladakh High Court

Jammu and Kashmir High Court: Sanjeev Kumar, J., heard the instant petition presented by the wife of the Petitioner to assail his detention ordered by District Magistrate, Pulwama under Preventive Detention law. The Bench opined,

“Two FIRs, pertain to the offences under NDPS Act and, therefore, if the petitioner was to be detained with a view to preventing him from indulging in illicit trafficking of drugs, there is a separate legislation in place i.e. the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which provides for preventive detention in such matters.”

On the basis of communication of SSP, the detaining authority arrived at satisfaction that to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him under Section 8 of the J&K Public Safety Act. As per the grounds of detention, it was alleged that the petitioner was affiliated with Jamat-i-Islami, an organization declared unlawful by Government of India, under sub-section (1) and (3) of Section 3 of the Unlawful Activities (Prevention) Act.

It is also claimed that the petitioner was involved in illicit trafficking of drugs and psychotropic substances and, in this regard, two FIRs stand registered against him NDPS Act. It is on the basis of aforesaid activities, the detaining authority had arrived at subjective satisfaction that keeping at large of the petitioner was detrimental to the maintenance of public order and, therefore, his detention under the Act necessitated.

Grounds of Challenge

The grounds of challenge which were pressed during the course of arguments by the petitioner were as under:

1) The subjective satisfaction derived by the detaining authority was vitiated for the reason that the detaining authority had clubbed two different types of activities;
2) The requisite material relied upon by the detaining authority to derive his satisfaction had not been served upon the petitioner. Even the copies of FIRs relied, referred to in the grounds of detention, had not been supplied to the petitioner;
3) The grounds of detention are totally vague, indefinite, uncertain and ambiguous and, therefore, vitiate the impugned order of detention.

Further, the petitioner argued that there was no reference to any of the activities of the petitioner which could demonstrate that even after 28-02-2019, when Jamat-i-Islami was declared as unlawful organization the petitioner had continued with his affiliation with the aforesaid organization nor the petitioner had been provided with any material which would indicate that the petitioner was ever associated with the aforesaid organization or was its member at any point of time.
Stand Taken by the Detaining Authority

The detaining authority submitted that the order of detention was based upon subjective satisfaction and the reasons that prevailed with it could not be gone into by the Court. Placing strong reliance on the judgment of the Supreme Court in Haradhan Saha v. State of W.B., (1975) 3 SCC 198, it was submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal and that the pendency of the prosecution is no bar to pass an order of preventive detention. It was also contended that where individual liberty comes into conflict with an interest of security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

Verdict of the Court

The Bench observed that, from the grounds of detention it transpired that the opinion of the detaining authority clearly oscillates between the activities of the detenue relating to illicit trafficking of drugs and those having potential of disturbing public order. Admittedly, instead of proceeding under Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the detaining authority had placed the petitioner in preventive detention. The Bench opined,

“The incident for which FIR had been registered pertains to the year 2016 whereas the impugned order of detention had been passed on 30-09-2020. There was, thus, no proximate link between both prejudicial activities of the petitioner and the object of detention.”

Hence, it could not be said that the detaining authority had derived its subjective satisfaction on the basis of any relevant material placed before it. Though, the detaining authority had contended that preventive measures taken against the petitioner in terms of Section 107 read with Section 151 of CrPC could not succeed to deter the petitioner from acting in any manner prejudicial to the maintenance of public order, no details of any proceedings under Section 107 had been given in the grounds of detention nor copy thereof had been provided to the petitioner. As a matter of fact, no date of occurrence for which proceedings under Section 107 read with Section 151 of CrPC were initiated, had been indicated which had made the grounds of detention vague, uncertain and indefinite. The Court expressed,

“In the absence of requisite and definite material having been supplied to the petitioner, it cannot be said that the petitioner has been given an opportunity to make an effective representation against his detention, which is a constitutional right of the person detained under preventive detention.”

The Bench held that the detention order is vitiated if the requisite material relied upon was not supplied to the detenue, in that, it affects the vital constitutional right of the detenue to make an effective representation. Simply because a communicated had been issued to the detenue informing him about his right to make a representation was not sufficient.

Lastly, opining that the detention was based on stale incidents which had no proximate and live link with the activities of the detenue, the Bench quashed the impugned order and directed the respondents to release the detenue from the preventive custody forthwith.[Ishfaq Amin Bhat v. UT of J&K, WP(Crl) No.161 of 2020, decided on 27-04-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. Mohammad Ayoub Bhat

For the UT: AAG Mir Suhail

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