Wasim Sadiq Nargal, J.

1. Through the medium of the present writ petition, the petitioner is seeking quashment of the impugned detention order bearing no. 27/DMB/PSA of 2022 dated 25.06.2022 passed by the respondent no. 2 (District Magistrate, Bandipora), whereby the detenue, namely, Farooq Ahmad Khan has been placed in preventive detention under Section 8(1)(a) of the Jammu & Kashmir Public Safety Act, and detained the petitioner in Central Jail Kot Bhalwal, Jammu.

ARGUMENTS ON BEHALF of THE PETITIONER.

2. It is contented by learned counsel for the petitioner that the impugned detention order has been passed mechanically and without application of mind. It has been further contended that the grounds on which the detention order is based contained bald assertions and no specific allegations which could have been rebutted by the detenue to show that the grounds of detention are non-existing.

3. It is further pleaded by learned counsel appearing for the petitioner that the respondents have not provided him the chance of making an effective representation against the detention order which strikes at the root of fundamental rights guaranteed to the detenue. It is contended by learned counsel for the petitioner that since the petitioner has not been provided the relevant material on the basis of which the impugned order was passed, he has been denied of effective representation and the action of the respondents, as such, is in contravention to the Section 13 of the Public Safety Act, 1978

4. It is submitted by learned counsel for the petitioner that the impugned order of detention violated the fundamental rights of the detenue. The counsel for the petitioner has vehemently argued that the right of personnel liberty is one of the most cherished rights which is guaranteed by the Constitution of India and in order to curtail the same there need to be cogent cause and reasons. It was further contended that in order to deprive a person of his right to life & liberty, there must be compelling reasons to so.

5. In light of the same, it has been vehemently contended that the order of detention passed against the detenue is based on his whims and caprices of the respondent no. 2. There are no cogent and specific grounds against the detenue and on the other hand, the grounds of detention are vague, ambiguous and bereft of details.

6. Furthermore, it was contented by the counsel for the petitioner that there is no whisper to the fact as to how the detaining authority arrived at the subjective satisfaction in order to detain the detenue, thereby throwing the normal procedure of law to winds. A perusal of the grounds of detention reveal no specified compelling reasons to detain the detenue.

7. Another contention of the petitioner is that the impugned order of detention has been passed without proper application of mind by the detaining authority. The grounds of detention are a replica and carbon copy of the dossier which has been provided by the respondents. The detaining authority has acted as a rubber stamp and issued the order without applying his mind to form an independent subjective satisfaction to justify the detention.

8. The further case of the petitioner is that the order impugned has been issued by respondent no. 2 without recording his independent subjective satisfaction and, thus, the detenue's liberty has been curtailed illegally and unconstitutionally.

9. Learned counsel for the petitioner has pleaded that the respondents have passed the impugned order without adhering to the provisions of the Public Safety Act and, as such, the order impugned cannot sustain the test of law and is liable to be quashed. It is the specific stand on behalf of the petitioner that the procedural and constitutional safeguards have not been followed by the respondents while issuing the impugned order of detention.

10. The petitioners have further taken a plea that the detenue's educational qualification is just 9th class pass, and therefore, is not well acquainted/conversant with the English language, but, the grounds of detention were furnished to him in English language/legal hyper-technical language. The detenue was not provided the translated copies of the order of detention and thus the impugned order was not understandable to him. The grounds of detention and the order of detention have not been explained to the detenue in the language which he would understand. This omission on the part of the detaining authority has again prevented the detenue from making effective representation against his detention and thus depriving him of his right to make effective representation against his detention.

11. It was further contended that the bare reading of the grounds of detention reveals that the detenue was alleged to be an OGW of a militant outfit LeT, (Lashkar-i-Toiba) and was involved in instigating the youth, however no details pertaining to the allegations have been provided anywhere. Therefore, the grounds framed against the detenue are vague and obscure.

12. It is submitted that the detaining authority has not revealed any specific details about the aforesaid alleged activities of the detenu. It is further alleged that the detenu is continuing in his activities posing threat to security of State. However, no details whatsoever have been provided regarding such activities. In view of these vague allegations in the grounds of detention, the detenu has been prejudiced in making an effective representation and hence on this ground alone, the impugned order of detention is liable to be set aside.

13. It has been projected by the learned counsel for the petitioner that only vague and obscure grounds have been framed and furnished to the detenue. The detaining authority has laid down the allegations against the detenue but no details thereof are given to enable the detenue to make representation against such allegations which renders the detention of the detenue illegal and unconstitutional.

14. That in the grounds of detention it has been averred that the detenu is "of fundamentalist ideology and that with the passage of time the detenu has "become a hardcore fundamentalist." It is submitted that the said ground is extremely vague and has no clear nexus with the maintenance of public order or the Security of the State. The detaining authority has not explained what is meant by "fundamental ideology and how the alleged harbouring of such ideology is detrimental to the maintenance of public order or the Security of the State to the extent as to invoke the preventive detention law.

15. The petitioner has further taken a stand that in grounds of detention in para 3, the detaining authority in a very cryptic manner that "the ordinary law of the land is not sufficient in deterring or stopping the detenue from carrying out nefarious activities", without providing any specific reason/grounds.

16. It has been further argued that the one of the grounds taken in the detention order is that the name of the detenue figures in case FIR No. 33/2006 u/s. 20, 40 of UAPA, 121, 121A, 124A, R/W 120B of RPC. However, the said ground is irrelevant and non proximate, and thus doesn't make a ground for preventive detention against a detenue in 2022. As per the petitioner, there are no compelling reasons which could give detaining authority a report to detain him.

17. Thus, on the aforementioned basis, the petitioners have filed the writ of habeas corpus for liberation of the detenue.

ARGUMENTS ON BEHALF of THE RESPONDENTS.

18. Per contra, Mr. Ilyas Laway, learned GA, appearing for the respondents vehemently argued that the detenue being an anti national element, desperate character and habitually indulging in act of violence, as such, falls under the category of being a threat to security of the state and, accordingly, was detained after following due process of law and all the procedural formalities as envisaged under the Public Safety Act.

19. It has been further urged by learned counsel for the respondents that the ordinary law has not proved adequate in order to deter the petitioner from indulging in repeated acts of aforesaid nature, therefore, the law enforcing agency has been left with no other option but to request for invoking the provisions of the Public Safety Act for detaining the petitioner so that he is prevented from indulging in the activities which are prejudicial to the security of the state.

20. It is contended by the learned counsel for the respondents that the detaining authority has passed the detention order well within the parameters of law as the same can be ascertained from the record of the detenue. The criminal tendencies of the detenue can be ascertained from the fact that the detenue is figuring in criminal case FIR No. 33/2006, registered against him in police station Parimpora srinagar.

21. It has been argued by the learned counsel for petitioners that the detenue was earlier also placed under PSA Vide No. DMS/PSA/119/05, but after his release he was put in close surveillance and during the same it came to light that the detenue had again established his links with the terrorist outfits. Thus, it can be validly said that the ordinary law of land could not deter him and therefore it was imperative to detain him under the preventive detention, in order to prevent him from acting in any manner prejudicial to the security of the state.

22. It has been further urged by counsel for the respondents that the impugned order of detention does not suffer from any malice or legal infirmity, as such challenge thrown to it is totally misdirected and misconceived, hence, on this score also, the respondents have sought dismissal of the writ petition.

23. It is further urged by the respondents that the petitioner has been provided all the material to him well within time. The contents of PSA warrant, grounds of detention have been read over and explained in the language understood by him and was also informed of his right to make an effective representation, which stands proved by virtue of the signature appended by the detenue on the execution report.

24. It is specifically pleaded by the respondents that the Government after examining the detention order and materials on record, in exercise of power under section 8(4), approved the detention order. Thereafter, the Advisory Board constituted under section 14 of the Act, confirmed the aforementioned order, vide Government Order No. Home/PB-V/1958 of 2022 dated 18.08.2022.

25. It has further been contended by learned counsel for the respondents that the petitioner has been detained as a precautionary measure based on reasonable prognosis of the future behaviour of the detenue.

LEGAL ANALYSIS

26. Right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India,1978 AIR SC 597), is to be just and fair. The personal liberty may be curtailed, were a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing the trial on a criminal charge and is temporarily deprived of his personal liberty because of the criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case the prosecution fails to bring home his guilt. Where such a person is convicted of offence, he still has satisfaction of having been given the adequate opportunity to contest the charge and also adduce the evidence in his defence.

27. The essential concept of the preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of the detention is satisfaction of the Executive of a reasonable probability of likelihood of the detenue acting in a manner similar to his past acts and preventing him by detention from doing the same. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanizing the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127 [LQ/SC/2014/1318] .

25. While the object to the punitive detention is to punish a person for what he has done, the object of the preventive detention is not to punish an individual for any wrong done by him, but curtailing his liberty with a view to preventing him from committing certain injurious activities in future. Whereas the punitive incarceration is after the trial on the allegations made against a person, the preventive detention is without trial into the allegations made against him. [Haradhan Saha v. State of W.B. (1975) 3 SCC 198] [LQ/SC/1974/245] .

28. In the present case, the main assertion of learned counsel for petitioner is that the material, relied upon by detaining authority for issuance of impugned order of detention, is based on vague, obscure and ambiguous grounds. On the perusal of the record It is a well settled legal position that order of detention cannot be based on vague grounds. I am fortified by a judgment of this court passed on the 30th of December, 2022 in which the petition was disposed of and the detention order against the petitioner was quashed. This issue has been dealt in case of Abdul Rashid Malik vs. Union Territory of J&K WP(Crl.) No. 253/2021.

"5. It may be appropriate to mention that perusal of grounds of detention reveals that grounds of detention are vague and ambiguous and do not refer to any date, month or year of the activities, which have been attributed to detenu. Detention in preventive custody on the basis of such vague and ambiguous grounds cannot be justified."

29. Also, in the case of Arif Manzoor Sheikh V. Government of J&K and Ors. 2022 Live Law (JK) 31, a coordinate bench of this court held that,

"5. Taking into account the rival contentions of parties and submissions made by learned counsel for parties, it would be relevant to go through the grounds of detention. Perusal thereof reveals that same are vague and ambiguous, and do not refer to any date, month or year of the activities, which have been attributed to detenu. Detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified. It may not be out of place to mention here that preventive detention is largely precautionary and is based on suspicion. The Court is ill-equipped to investigate into circumstances of suspicion on which such anticipatory action must be largely based. The nature of the proceeding is incapable of objective assessment. The matters to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of surrounding circumstances and other relevant material, is likely to act in a prejudicial manner as contemplated by the provisions of the law and, if so, whether it is necessary to detain him with a view to preventing him from so acting."

30. It was further held that:

"Even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is nonexistent or misconceived or irrelevant, the order of detention would be invalid. Where the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague or irrelevant the entire order must fall. The satisfaction of detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention".

31. In the case of Fatmabai Abdulkadar V. Shyamlal Ghosh (1975) 16 GLR 846 [LQ/GujHC/1974/169] , the Hon'ble High Court of Gujarat held that:

"It cannot be gain-said that the grounds which is vague is no ground at all. If the detenue has a right to make an effective representation against his detention it is difficult to conceive how he can make any representation at all unless the grounds give him a clear as to the charges which he is called upon to meet with. Under the circumstances, one thing which is clear is that a vague ground is no ground and whenever a vague ground is given for the detention of a particular person, he is robbed of his important right of making representation against the order of his detention."

32. In the case of Mohd. Sharif V. State 2003 (Supp) JKJ 193-HC, it was held that in the absence of specific details of the allegations indicated in the grounds of detention and without providing him the material relied upon by the detaining authority, the detenue was unable to make representation to the state advisory board constituted under section 14 of the Act and as such, the order of detention is bad in law.

33. Adverting to the second issue, i.e., non supplying of the relevant material in language understood by the petitioner.

34. At the outset, it is pertinent to refer to section 13 of the Public Safety Act, which is reproduced as under:-

Grounds of order of detention to be disclosed to persons affected by the order. --(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, 2 [but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention] 3 [communicate to him, in language which is understandable to him, the grounds on which the order has been made], and shall afford him the earliest opportunity of making a representation against the order to the Government.

35. As per the execution report, it is evident that detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (nil), copies of F.I.R., statement of witnesses and other related relevant documents (nil) (total 04 leaves) were supplied to petitioner and were read over in English language and explained in kashmiri/urdu language and in acknowledgement thereof, the petitioner signed in English and simultaneously, he was also informed about his right to make representation before the detaining authority as well as the Government against the said order of detention. Further, the petitioner was also briefed about the grounds of detention in the language which he understood fully. However, merely by explaining the grounds in the language understood by him, does not fulfill the object. In order to make an effective representation, the grounds must be supplied to him in the language understood by him.

36. The grounds of detention should have been furnished to the detenue in English. However, on the bare perusal of the record it is evident that the grounds have been read over to him in the language understood by him but the detenue has not been provided a translated copy. Therefore, the non supplying of the relevant material in the form of translated copies also vitiates the order.

37. I am fortified by the below mentioned judgments with regard to the aforesaid preposition of law.

38. In the case of Lallubhai Jogibhai Patel V. Union of India (1981) 2 SCC 427, [LQ/SC/1980/492] it was held that:

"The whole purpose of communicating the 'grounds' to the detenue is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenue and nothing in writing is left with him in a language which he understands, then that purpose is not served and the constitutional mandate in article 22(5) is infringed."

In Harikisan v. The State of Maharashtra & Others (1962) 64 BOMLR 522 [LQ/SC/1962/42] /AIR 1962 SC 911 [LQ/SC/1962/42] , the Court reiterated that the provisions of Article 22 (5) of the Constitution required that the grounds should be communicated to the detenu as soon as may be and that he should be afforded the earliest opportunity of making a representation against the order. This Court reiterated that communication meant bringing home to the detenu effective knowledge of the facts and the grounds on which the order was based. To a person who was not conversant with the English language, in order to satisfy the requirement of the Constitution, the detenu must be given grounds in a language which he can understand and in a script which he can read, if he is a literate person, in that case it was held that mere oral translation at the time of the service was not enough.

39. Another contention that needs to be dealt in the present case by this court is that the grounds of detention are a carbon copy of the dossier. On a careful analysis of the record and on due consideration of the rival contentions, it is apparent that the grounds of detention are a replica and a carbon copy of the dossier furnished to the detaining authority for making an order of detention. This exhibits that the detaining authority has completely failed to apply its mind and has passed the order in a mechanical and routine manner. This shows total non-application of mind on part of the detaining authority in the process of deriving subjective satisfaction which has become causality. While formulating grounds of detention, detaining authority has to apply it own mind independently. It cannot simply reiterate, whatever is written in the dossier, therefore, the order of detention gets vitiated in the eyes of law by acting as a rubber stamp.

40. I am fortified by the following judgments in this respect:

34. In the case of Javaid Ahmad Bhat V. UT of J&K and Anr. WP (Crl.) no. 507 of 2022, a coordinate bench of the Hon'ble Court, while quashing a detention order observed that:

"District Magistrate seems to have relieved himself from labour and effort of independent application of mind to the dossier case put up by the SP and instead the magistrate simply carried out re-typing of the dossier in the name of showing so called application of mind."

41. A similar observation was made in the case of Azad Ali Khan V. State and Ors. 2007 (2) JKJ HC-34, where it was observed that:

"Scrutiny of the grounds of detention and in the manner in which these have been drafted by just copying the dossier of the police demonstrates complete non-application of mind by the District Magistrate in exercising power under section 8 of the Public Safety Act, 1978."

42. The above settled legal position makes it clear that if grounds of detention and dossier are similar in language, it would tantamount to non-application of mind on the part of detaining authority. As already noted, in the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar expressions which show that there has been non-application of mind on the part of the detaining authority. The impugned order of detention is, therefore, unsustainable in law on this ground alone.

43. Another contention which was raised by the parties and needs to be dealt with by this court is regarding the detenue's alleged involvement in FIR no. 33/2006.

44. The said ground has no proximate relation with the detention order. The FIR in question dates back to the year 2006 and thus has no link or relation to the present detention order. A Period of almost 16 years has passed since the registration of FIR and the detention order was passed against the detenue in 2022. The only FIR in 2022 has no live/proximate link between the two. More so, there was nothing on record to substantiate whether any case was even registered against the detenu during this intervening period of 16 years or there was any complaint against the detenue. In case, the stand of respondents is taken at its face value that immediately after his release from first detention order passed in 2006, his activities were prejudiced to the State, then what prevented the authorities to book him under Criminal Law or invoking detention laws for 16 long years is not forthcoming from record.

45. In this regard I am fortified by the following judgments:

The Supreme Court in the case of Sama Aruna v. State of Telengana and &anr,: (2018) 12 SCC 150, [LQ/SC/2017/760] while holding that the incidents which are said to have taken place long back, cannot form basis for being satisfied that the detenue is going to engage in similar activities, observed as under:

"17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it."

46. Reliance is placed on a recent judgment of this court, titled Khalid Nazir Wagay vs. Union territory of J&K & ors. decided on 09/02/2023.

"12. A perusal of the grounds of detention reveals that the incidents referred therein pertain to the year 2016, 2017 and 2018, that is more than six years, five years and four years respectively prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus, it is clear that the order of detention has been based on past and stale incidents. In fact, the incidents and FIRs which formed basis of the grounds of detention have been the basis of earlier detention of petitioner which was made in terms of order No. 19/DMK/PSA/2018 dated 04.10.218, which has been quashed by this Court while disposing of HCP No. 363/2018. Thus, using the same grounds and material for passing subsequent detention order without actually mentioning that the petitioner had been previously detained on the basis of this very material not only amounts to an illegality but also shows lack of application of mind on the part of the detaining authority".

47. In the case of Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632, [LQ/SC/2019/1929 ;] it was held that:

"It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future.

48. It has been held by the Hon'ble Supreme Court in Mallada K Sri Ram V. State of Telangana 2022 Live Law (SC) 358 that

"The personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding."

49. Given the aforementioned legal clarification on the matter, it is obvious that there must be a direct and immediate connection between the detenue's prior behaviour and the behavior of accused, that are harmful to upkeep the public order. The period between the order of custody and the occurrences mentioned in the grounds of detention is just too large in the current case to assume such a relationship exists. Thus, the order of detention cannot sustain the test of law.

CONCLUSION

50. For all what has been said hereinbefore and having regard to the law laid down in various judgments by Hon'ble Supreme Court, other High Courts and this High Court mentioned above, the detention order is unsustainable and bad in the eyes of law on the aforementioned grounds, i.e., the impugned order of detention is based on vague, obscure, and ambiguous grounds, non-supplying of relevant material in the language understood by the petitioner, the grounds of detention being a carbon copy of the dossier and the detenue's alleged involvement in FIR No. 33/2006 as noted hereinabove, it can be validly concluded that the essential requirement that needs to be fulfilled in order to make the detention valid, are not abided by the detaining authorities. This shows the casual behaviour of the detaining authority and the non-application of mind before arriving at subjective satisfaction. Hence, the detention order bearing No. 27/DMB/PSA of 2022 dated 25.06.2022 is liable to be quashed and the same is set-aside/quashed. The respondents are directed to release the detenue forthwith

51. Registry is directed to return the record to learned counsel for the respondents against proper receipt.