Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 342

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
VINOD CHATTERJI KOUL, J.
Syed Tajamul Andrabi - Petitioner
Versus
Union Territory of J&K and another - Respondent
WP (Crl) no.17 of 2021
Decided on : 28-12-2021

Advocates:
Advocate Appeared:
For the Appellant :Mr G. N. Shaheen, Advocate
For the Respondent: Mr Hakim Aman Ali, Dy. AG

Point of Law: Object of the law of preventive detention is not punitive, but is only preventive.

Headnote:
Preventive detention – Detention order – Grounds of detention - allegations mentioned in grounds of detention have no nexus with the detenu and have been fabricated by the police in order to justify its illegal action of detaining the detenu.
Finding of the Court:
Essential concept of preventive detention is that detention of a person is not to punish him for something he has done, but to prevent him from doing it. Its basis is satisfaction of the Executive of a reasonable probability of detenu acting in a manner similar to his past acts, and preventing him by detention from so doing. Preventive detention, an anticipatory measure, is resorted to when the executive is convinced that such detention is necessary to prevent a person detained from acting in a manner prejudicial to certain objects which are specified by the law-In preventive detention no offence is proved, and justification of such detention is suspicion or reasonable probability. Order of detention is based on a reasonable prognosis of future behaviour of a person based on his past conduct in light of surrounding circumstances. The power of preventive detention is exercised in reasonable anticipation-provisions of the Section 8, thus, clearly provide that it is the satisfaction of the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list.
Result: Petition dismissed

JUDGMENT :

1. The order no.09/DMP/PSA/21 dated 29.01.2021, passed by District Magistrate, Pulwama (for brevity “detaining authority”) placing one, Syed Tajamul Andrabi S/o Syed Manzoor Andrabi R/o Drabgam Tehsil Rajpora District Pulwama (for short “detenu”), under preventive detention so as to prevent him from acting in any manner prejudicial to the security of the State and directing his lodgement in Central Jail, Jammu (Kotbhalwal), has been challenged in this petition precisely on the following grounds:

i) that the allegations mentioned in grounds of detention have no nexus with the detenu and have been fabricated by the police in order to justify its illegal action of detaining the detenu;

ii) that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegation and passing of detention on such grounds is unjustified and unreasonable. The detaining authority has mentioned one FIR in the grounds of detention however it is respectfully submitted that the allegations as against the detenu are far from reality;

iii) that allegations as reflected in the grounds of detention are vague and don't justify the passing of detention order on the basis of such allegations. The detaining authority has mentioned single FIR in the grounds of detention however no specific allegation has been given regarding the detenu in the case mentioned in grounds of detention, even not an iota of connection is given in the grounds of detention connecting the detenu with the case. The very basis of the satisfaction recorded by the detaining authority is vague as such impugned order of detention suffers from complete non-application of mind on the part of detaining authority.

iv) that detenu was already admitted to bail in the case mentioned in grounds of detention on 22.12.2020 and he was allowed to be at large and thereafter no fresh activity has been attributed to the detenu. The detention order is based on the case FIR registered against him in September 2020, he remained in custody for more than three months, the prospects for the bail came into existence in the month of December 2020 and he was actually enlarged to bail on 22.12.2020;

v) That when for all this period the detention of the detenu was not found necessitated, the passing of detention order after due process of law has taken its course will not be saved by the principles of Article 22 which permit preventive detention as deviation general rule to Article 21.

vi). That the single alleged activity on the basis of which the detention order has been passed has occurred on 13.09.2020 and thereafter the detenu was arrested in the case and enlarged to bail in the due course of law. There is delay of about five months between the single alleged activity and order of detention and during the period of this delay, there is no fresh activity attributed to the delay. The detaining authority has not given any reason for this delay. The delay between the activity and the order of detention in the present circumstances has snapped the proximity of the detention order with the object it is passing is justified for and thus delay in passing the detention order has rendered the detention order unreasonable;

vii) That the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite for him before passing any detention order. It is respectfully submitted that detaining authority has relied only on the police dossier and has not perused any supporting material or material relating to the case. Furthermore the detaining authority seems to have worked on the dictates of police authorities and has not enquired about the existence of the facts by perusing the supporting material as such detention order has been passed on the same day it was recommended and, therefore, non-application of mind by the detaining authority has rendered the detention order bad in law;

viii) That respondent no.2 has not furnished t