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Detaining Authority Relies on Allegations Made in 2004 for Order Passing in 2020: Jammu and Kashmir High Court

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The petitioner was alleged to be a hardcore, habitual and strong supporter of terrorism under some terrorist organizations. The petitioner had a view to achieving the seceding of the Union Territory of Jammu and Kashmir from Union of India and should be merged with Pakistan. And he had been resorting to activities that caused disturbance and instability in the locality. The petitioner had exfiltrated to POK in the year 2001 in order to obtain training in handling illegal arms and ammunition. The petitioner was later on arrested by the police in FIR No.131/2004 under Section 7/25 Arms registered in Police Station, Beerwah. Further on 18.01.2019 P/S Beerwah, received information from reliable sources that some miscreants had assembled at the polling booth Hardulatinah with a view to disrupting the election process. And they had resorted to heavy stone pelting upon the security forces and caused serious injuries to the security force personnel. With regard to this incident, FIR No.49/2019 under Section 148, 149, 336, 353, 427, 307, 332 RPC etc. was registered in Police Station, Beerwah and involvement of the petitioner were established. 

On the basis of these allegations and the FIRs, the Superintendent of Police recommended the preventive detention of the petitioner. The detaining authority said that there would be an imminent threat to human life and property if the petitioner was not detained. The detaining authority, thus, finds it imperative to detain the petitioner by invoking Section 8 of the J&K Public Safety Act.

Contentions before the Court

The learned counsel representing the petitioner claimed that the grounds of detention were vague, irrelevant and non-existent. He further claimed that the detaining authority had relied upon the allegations registered in the year 2004 to pass an order of detention in the year 2020. Thus, he argued that there was no live and proximate link between the allegations and the order of detention.

He submitted that the order of detention also suffered from no application of mind of the detaining authority. The detaining authority had not shown any awareness with regard to the fact that the detenu had been acquitted by the Court of Sessions Judge, Budgam, in FIR No.131/2004 on 21.02.2009.

Court’s Observation

The Hon’ble Justice observed that the detention of the petitioner was not sustainable in law for more than one reason. From a perusal of grounds of detention, it clearly transpired that the petitioner was put under preventive detention primarily for his involvement in the two FIRs. 

Apart from the fact that the allegations contained in FIR registered in the year 2004 were too stale to establish any proximate link with his detention, the detaining authority had shown complete ignorance that the petitioner stood acquitted in the aforesaid FIR on 21.02.2009. 

Surya Prakash Sharma vs. State of U.P and Ors. was taken into consideration for deciding whether preventive detention should be given or not. Further reliance was placed on the decision of the case Rushikesh Tanaji Bhoite vs. State of Maharashtra & Ors. where the Supreme Court held that the detention order would be rendered bad if the detaining authority was unaware of the fact that the detenu was in custody when the order of detention was passed and that he had moved an application for grant of bail.

Court’s Decision

The Hon’ble Court decided that the Court finds merit in this petition and it was therefore allowed. The order of detention was accordingly quashed.

The direction was issued to the respondents to release the detenu from the preventive custody forthwith, provided he was not required in connection with any other case. 

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