Tashi Rabstan,J. -
(1.)District Magistrate, Srinagar - respondent no.2 herein (for brevity 'detaining authority'), has, by Order no.DMS/PSA/105/2019 dated 7th August 2019, placed Mr Miyan Abdul Qayoom son of Miyan Abdul Rehman resident of Bulbulbagh, District Srinagar, under preventive detention, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It is this order, of which petitioner is aggrieved and throws challenge thereto on the grounds tailored in petition on hand.
(2.)The case set up in instant petition is that detenu is a renowned practicing senior Advocate in High Court of J&K for last forty years and that he is also President of J&K High Court Bar Association, Srinagar. It is submission of petitioner that detenu had been earlier placed under preventive detention in the year 2010 and after incarceration in various Sub Jails of J&K, the detention order was withdrawn. The detenu is said to have been arrested during intervening night of 4th/5th August 2019 and lodged in Police Post Rangreth for two days and after that he was shifted to Central Jail, Srinagar. Upon having ken thereabout, petition, being WP(Crl) no.248/2019, was filed by General Secretary of J&K High Court Bar Association, Srinagar, in which notice was issued upon respondents, asking them to disclose the authority under which detenu was jailed. The said petition, however, was withdrawn by petitioner with a liberty to file a fresh as petitioner had reliably learnt that detenu was likely to be placed under preventive detention. It is averred that close relations of detenu went to Central Jail, Srinagar, to enquire about his presence, where they were intimated that detenu had been shifted from Central Jail, Srinagar. It is maintained by petitioner that a news item, circulated by news channels, disclosed that nearly 20 people from Central Jail, Srinagar, had been shifted and lodged in Central Jail, Agra and finally, they came to know about lodgement of detenu in Central Jail, Agra under preventive detention. It is claimed that close relations of detenu managed to get the order of detention, communication dated 7th August 2019 and grounds of detention, on 17th August 2019. The detenu is said to be suffering from various ailments.
2.1. It is also averred in writ petition that respondent no.2 has issued impugned order of detention on the basis of a communication of respondent no.3 dated 6th August 2019 along with material produced before him with connecting documents, but the said communication was not provided to detenu nor connected documents, which has deprived him of making an effective representation before detaining authority or government. The material relied upon by detaining authority is stated to have not been furnished to detenu.
2.2. It is maintained that grounds of detention are replica of dossier inasmuch as grounds of detention have not been formulated by respondent no.2 and that order of detention and grounds of detention have been signed by respondent no.2 without application of mind and without going through grounds of detention.
2.3. Further submission of petitioner is that activities mentioned in grounds of detention pertain to the year 2008 and 2010 and that respondent no.2 has relied upon FIRs registered in the year 2008 and 2010 for detaining detenu, for which detenu had already been detained in the year 2010 and that such material cannot be relied upon for repeating the order of detention. Petitioner states that a mention is made about his activities after death of Burhan Wani in the year 2016, which fact is not correct and that it is a false allegation levelled against detenu inasmuch as these incidents, which have been relied upon by respondent no.2, for passing impugned order of detention are vague, without any material to support the same. The detaining authority is said to have not even mentioned as to what has happened to FIRs relied upon by detaining authority in grounds of detention and as to whether FIRs have been concluded and put to the Court for trial by producing Challan or whether investigation has been concluded or completed by police stations concerned, in these FIRs even after nine years, which would mean that FIRs itself have become stale, so far as connecting detenu with today's situation is concerned.
2.4. It is stated that respondent no.2 has nether shown awareness of the fact that as to whether detenu has been granted bail in these FIRs, particularly in FIR no.74/2008 and FIR no.27/2010, in which, one of the offences is 13 ULA(P) Act nor respondent no.2 has reflected in grounds of detention that as to whether detenu has applied for bail, which confirms non-application of mind on the part of respondent no.2. Even if previous grounds are mentioned, in that eventuality fresh grounds cannot be considered for confirming or putting the person under detention.
2.5. It is claimed that what were decisions taken by Union Government on 5th August 2019, have not been mentioned by detaining authority and what was activity between 5th August 2019 to 7th August 2019, which influenced mind of detaining authority or police that detenu would instigate general public to resort to violence, have not been mentioned by detaining authority because such activities would thereafter become a ground for detaining the detenu under preventive detention, when fact of the matter is that detenu was already detained during intervening night of 4th/5th August 2019.
2.6. It is also submitted that what were sufficient compelling reasons for putting detenu under prevention detention, have not been spelled out by detaining authority either in grounds of detention or in order of detention and even grounds of detention do not mention that which are the activities that led to agitation and on what occasions it endangered public life and property and disturbed peace and tranquillity of the State. Such record has not been provided to detenu.
2.7. It is claimed that respondent no.2 has informed detenu about order of detention dated 7th August 2019, through letter dated 7th August 2019, and has asked him to inform Home Department as to whether he would like to be heard in person by Advisory Board and he has also asked him to make a representation against order of detention to detaining authority or to Government, if he so desires. However, respondent no.2 has not informed detenu as to within how much period of time, he has to inform Home Department about his being heard by Advisory Board or as to within how much period of time he has to make a representation against order of detention to detaining authority or Government.
2.8. Grounds of detention, according to petitioner, are vague, indefinite, uncertain and baseless as also ambiguous and lack in material particulars and essential details, which has rendered detenu unable to make an effective representation against his detention to appropriate authority.
(3.)Reply affidavit has been filed by respondent. They insist that detenu came to be detained under the provisions of J&K Public Safety Act, 1978, (for brevity 'Act of 1978') validly and legally and that all statutory requirements and Constitutional guarantees have been fulfilled and complied with by detaining authority. It is also insisted that grounds of detention, order of detention as well as the material relied upon by detaining authority have been furnished to detenu well within statutory period provided under Section 13 of the Act of 1978. The warrant of detention was executed by Executing Officer, namely, Inspector Parvaiz Ahmad no.7833/NG, SHO P/S Khanyar and detenu was handed over to S. P. Central Jail, Srinagar. The contents of detention order/warrant and grounds of detention are stated to have been read over and explained to detenu. Grounds of detention, it is submitted, have been framed by detaining authority with complete application of mind after carefully examining the material/record furnished to it by sponsoring agency and only after deriving subjective satisfaction. It is averred that use of expression 'subject' in grounds of detention as similar to that of expression 'subject' used in dossier will not render the order of detention ineffective and cannot be said to be suffering from vice of non-application of mind by detaining authority. Respondents maintain that in terms of Section 10-A of the Act, a detention order passed under Section 8, which has been made on two or more grounds, shall be deemed to have been made separately on each of such grounds and shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague. Respondents claim that detenu is a practising lawyer in Srinagar having held position of President of J&K High Court, Bar Association Srinagar, and over a period of time, he has emerged as one of the most staunch advocate of secessionist ideology propagating in public through his speeches and appeals and that detenu has been involved in various criminal cases inasmuch as detenu has been using platform of J&K Bar Association for promoting and advocating his secessionist ideology and has been sponsoring strikes while instigating general public for indulging in activities prejudicial to maintenance of public order.
3.1. Respondents also maintain in their Reply Affidavit that detenu has been actively involved in furtherance of his secessionist ideology in the Valley, particularly during agitation of 2008 as also in the agitation at the time of killing of terrorist, Burhan Wani, in 2016, which agitation led to highest magnitude of violence in the Valley, leaving many people dead. Since detenu have had a long history of promoting, propagating and advocating secessionist ideology inasmuch as instigating public wilfully and unlawfully for violence against the government established under law and its functionaries, therefore, detaining authority on careful examination of the entire material furnished to it by all concerned, deemed it expedient, imperative and appropriate to detain detenu under the provisions of the Act of 1978 in terms of order dated 7th August 2019, in that there has been every likelihood and apprehension after Government of India passed law regarding abrogation of Article 370 read with Article 35(A) of the Constitution of India. The detenu in view of his secessionist ideology and on account of his past unlawful activities, having been found prejudicial to maintenance of public order, would instigate general public to resort to violence, which would in the process disturb maintenance of public order. Hence detaining authority found it necessary and imperative to invoke relevant provisions of the Act of 1978 and subsequently detain the detenu in order to preclude him from indulging in activities which would be prejudicial to maintenance of public order.
3.2. It is also insisted that power of preventive detention is a precautionary power exercised in reasonable anticipation and it may or may not relate to an offence. The basis of detention is satisfaction of Executive on a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and prevent him from doing the same. It is claimed that detenu has been staunch advocate of secessionist ideology instigating public through his speeches, hartal calls and physical participation in strikes aimed at disturbing public order and that detaining authority, therefore, while taking into account past activities of detenu found it imperative and necessary to detain him inasmuch as preventing him from indulging in the said activities not with an object of punishing him for something he has done but to prevent him from doing it. Reference of FIRs in grounds of detention reflects and manifests awareness of detaining authority qua conduct and activities of detenu that he has been indulged in. The order of detention has been passed by detaining authority as a precautionary measure based on a reasonable prognosis of the future behaviour of detenu based on his past conduct in light of surrounding circumstances much probability emerged warrant detention of detenu.