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UAPA & Preventive Detention: Important High Court Judgments 2022
LIVELAW NEWS NETWORK
7 Jan 2023 11:18 AM GMT
LiveLaw reported almost 7,000 orders and judgments in 2022 from various High Courts across the country. Here are some important decisions relating to preventive detention and Unlawful Activities (Prevention) Act, 1967:1. "Matter Pertains To National Security": Allahabad HC Denies Bail To Man Accused Of Running Fake Lottery, Sending Money To PakistanCase title - Prakash @ Jai Prakash Ruhela...
LiveLaw reported almost 7,000 orders and judgments in 2022 from various High Courts across the country. Here are some important decisions relating to preventive detention and Unlawful Activities (Prevention) Act, 1967:
Case title - Prakash @ Jai Prakash Ruhela v. State of U.P
Case Citation: 2022 LiveLaw (AB) 129
The Allahabad High Court denied bail to a man who has been accused of running a fake lottery to dupe Indian nationals and sending the money to handlers in Pakistan.
The Bench of Justice Krishan Pahal opined that even though the provisions of the Unlawful Activities (Prevention) Act have not been initiated against the bail-applicant, prakash, however, since the matter pertains to national security and therefore, it is not a fit case for bail.
Case title - Ansad Badruddin And Another v. State Of U.P. Thru. Prin. Secy. Home Lucknow And 2 Others [CRIMINAL APPEAL No. - 1763 of 2022]
Case Citation: 2022 LiveLaw (AB) 526
The Allahabad High Court denied bail to two alleged members of Popular Front of India (PFI) who have been booked under the UAPA for allegedly conspiring to commit the murder of people and Office Holders of Hindu Religious Organizations and for creating fear and terror in the Society.
"...considering the fact that the recovery being made from the appellants of seized objectionable articles including explosive substances, which was to be used by them to attack on Senior Leader of different Hindu Religious Organization and to blast different sensitive places of Uttar Pradesh, for which no satisfactory explanation has been given by the appellants, thus, it cannot be said that the involvement of the appellants in their nefarious designs could be ruled out and further looking into their criminal antecedents and the fact that the trial is in progress, which is fixed for framing charges against the appellants by the trial Court," the bench of Justice Ramesh Sinha and Justice Renu Agarwal observed as it refused to grant bail to the accused.
Case Title: P Varavara Rao v. National Investigation Agency
Citation: 2022 LiveLaw (Bom) 154
Refusing to grant permanent bail on medical grounds to Bhima Koregaon - Elgar Parishad accused poet Varavara Rao the Bombay High Court said that prima facie observations regarding "seriousness and severity" of the crime he is accused of would remain till he is pronounced "not guilty."
Therefore, based on Rao's sound clinical summary dated December 15, 2021, and the allegations against him of being the "main conspirator," he was not entitled to medial bail, the court held.
"Seriousness and severity of the crime would remain till such time the accused is pronounced not guilty of the crime alleged to have been committed by him. Role attributed to the accused is serious. He is one of the main conspirators. Therefore, in our opinion, on the medical ground the accused is not entitled to get bail", a division bench of Justices Sunil Shukre and GA Sanap observed.
Case Title: Gautam Navlakha vs National Investigation Agency
Citation: 2022 LiveLaw (Bom) 161
The Bombay High Court dismissed a petition by senior journalist Gautam Navlakha seeking to shifted out of Taloja Prison and be placed under house arrest, instead, in the Bhima Koregaon – Elgar Parishad Caste violence case.
A division bench of Justices Sunil Shukre and GA Sanap said that whatever grievances Navlakha had in prison could be placed before the trial court for appropriate action.
Case Title: Dr P Varavara Rao & othrs vs State of Maharashtra and othrs
Citation: 2022 LiveLaw (Bom) 173
The Bombay High Court held re-hearing of the matter on a point which was not at all urged, is impermissible in law, under the guise of review. Nor can review be claimed or asked for merely for a fresh hearing or canvassing a totally new submission.
The bench thus rejected a review application filed by three accused in the Bhima Koregaon – Elgar Parishad Case seeking default bail alleging factual corrections in the order refusing them default bail. The fact that the accused had also filed for default was not argued before the court.
"We, therefore, find it difficult to accede to the submission on behalf of the applicants that a factual error had crept in… It is trite that disguised as a review, it is not permissible even for an erroneous decision to be, "re-heard and corrected".
Case Title: Mubeen Kadar Shaikh Versus State of Maharashtra, and connected matters
Citation: 2022 LiveLaw (Bom) 174
The Bombay High Court has directed the Special Court to re-adjudicate the plea of an accused seeking to drop charges under the Maharashtra Control of Organised Crime Act (MCOCA) against 23 men arrested over 13-14 years ago in the Indian Mujahideen Case.
A division bench observed that an application seeking to drop certain charges was pending before the trial court when charges were framed in 2013 and the court couldn't have framed charges before disposing of the application.
Case Title : Mohammad Raisuddin v The National Investigating Agency and anr
Citation: 2022 LiveLaw (Bom) 237
The Bombay High Court has granted bail to a man from Parbhani, accused of taking an oath of allegiance to the banned terror organisation Islamic State and booked under the Unlawful Activities (Prevention) Act.
A division bench of Justices Revati Mohite Dere and VG Bisht granted bail to Mohammad Raisuddin noting that laboratories had given divergent views connecting "oath" document to the handwriting of the accused. Moreover, NIA did not tender the opinion in the accused's favour for over two years.
Even otherwise, the Oath declaring a former leader of the IS as the "caliph" of Muslims was not prima facie incriminating, the court said
"Petitioner would be at liberty to bring to the attention of presiding officer of special NIA court the grievances in respect of difficulties faced by him and the said officer directed to ensure grievance redressed within parameters of law."
8. Gadchiroli Blast Case: Bombay High Court Grants Bail To 72-Yrs-Old Alleged Naxal Operative
Case Title: Sathyanarayana Rani v. State
Citation: 2022 LiveLaw (Bom) 255
Bombay High Court granted bail to 72-year-old to Sathyanarayana Rani, arrested in 2019 for allegedly being a top Naxal operative and conspiring the attack on security personnel in Gadchiroli.
On May 1, 2019 fifteen security personnel from the Quick Response Team (QRT) and one civilian were killed in an IED explosion attack in Gadchiroli. The case was subsequently transferred to the National Investigation Agency (NIA). They were booked under sections 302, 353, 120B, 147-149, 427 of the IPC, sections 16,18,20,23 of UAPA, sections 4 and 5 of
Case title: Hany Babu v. National Investigation Agency and Anr.
Citation: 2022 LiveLaw (Bom) 337
the Bombay High Court refused to grant bail to Delhi University Professor Hany Babu accused in Elgar Parishad case observing that mobilising rallies and co-ordinating the defence of convicted professor GN Saibaba was not just helping a fellow academic, but prima facie following a leftist handbook.
A division bench of Justice Nitin Jamdar and NR Borkar said that their opinion about Babu not just being a mere sympathiser but being someone who was given substantial responsibility, at RDF, an alleged front organisation, was based on broad probabilities.
Case Title: G.N. Saibaba v. State of Maharashtra
Citation: 2022 LiveLaw (Bom) 384
The Bombay High Court (Nagpur Bench) discharged former Delhi University professor G N Saibaba and five others in alleged Maoist links case. The Court has allowed their appeals against conviction and life sentence imposed under the anti-terror law UAPA.
The Court held that the trial was null and void as valid sanction as required under Section 45 of the UAPA was not obtained. The Court observed that procedural safeguards cannot be
Case Title: Jyoti Jagtap v. National Investigating Agency and Anr.
Citation: 2022 LiveLaw (Bom) 394
The Bombay High Court while refusing bail to accused Jyoti Jagtap under UAPA, held that text ridiculing phrases like 'Ram Mandir' and 'Acche Din' aimed at the democratically elected government in Kabir Kala Manch's plays at the Elgar Parishad event in 2017 incited hatred & passion and indicate a larger conspiracy.
The bench of Justices AS Gadkari and Milind Jadhav also took exception to the mention of 'gomutra,' 'calling the PM an 'infant,' 'sanatan dharma,' 'atrocities of peshwas towards dalits' and 'atrocities of dalits in today's India' etc.
The court held NIA's contention regarding Jagtap having conspired, attempted, advocated and abated the commission of a terrorist act as prima facie true and said that her role will have to be seen as a part of conspiracy. Her name on the Elgar Parishad event invite, witness statements highlighted her active role in organising the event as also her association with active members of the banned CPI (Maoist).
Case Title: Dr. Anand Teltumbde v. National Investigation Agency,
Citation: 2022 LiveLaw (Bom) 447
The Bombay High Court said prima facie "it cannot be concluded that Teltumbde has indulged in a terrorist act," while granting bail to Anand Teltumbde on merits, in the Bhima Koregaon – Elgaar Parishad Case.
A division bench of Justices AS Gadkari and Milind Jadhav observed that sections 16 (punishment for terrorist act), 18 (punishment for conspiracy), and 20 (Punishment for being member of terrorist gang or organisation) of Unlawful Activities (Prevention) Act were prima facie not made out.
The court noted that prima facie the five letters cited against Anand Teltumbde, allegedly recovered from co-accused Rona Wilson's laptop would fall under the "realm of presumption" which would need "further corroboration."
Court observed that NIA's case that the CPI(Maoist) using the Elgar Parishad to further a 'larger conspiracy,' the material on record was not adequate to charge him to the sections.
Case Title: Dr. Hany Babu Musaliyarveettil Tharayil v. National Investigation Agency & Anr.
Citation: 2022 LiveLaw (Bom) 495
The Bombay High Court allowed Delhi University (DU) associate professor Hany Babu, accused in the Bhima Koregaon - Elgar Parishad case to undergo cataract surgery at a private hospital in Mumbai.
A division bench led by Justice AS Gadkari directed Babu, currently lodged in Taloja Prison, to be escorted to the private hospital on Tuesday, further permitting hospitalisation for four days. During this time, he would also undergo diagnosis for upper abdominal pain and osteoarthritis. The court refused to widen the scope of the petition regarding treatment for other ailments as well. It only permitted a cataract surgery and diagnosis for other ailments.
Case Title: Surojit Mandal v. National Investigation Agency (NIA)
Case Citation: 2022 LiveLaw (Cal) 32
The Calcutta High Court observed that Section 44 (3) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) mandate Courts to undertake measures to protect the identity of a protected witness and accordingly directed the concerned Trial Court to to redact the name, address and other particulars of the protected witness from the records immediately. A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak noted that in the instant case, the statement of the protected witness recorded under Section 164 CrPC discloses his indignity. Opining that such disclosure of indignity defeats the provision of Section 44 (3) of the UAPA, the Bench observed, "Sub-section (3) of section 44 of the Unlawful Activities (Prevention) Act, 1967, inter alia, provides the measures which the court may undertake to protect the identity of a protected witness which includes avoiding to mention the name and address of the witness in its orders or judgment and any record of the case accessible to public. Statement under section 164 Cr.P.C. of the witnesss is required to be served upon the accused. Hence, disclosure of identity of the protected witness in such statement clearly defeats the purpose of the aforesaid provision of law." The Court further directed the Trial Court to exercise more caution in ensuring that the indignity of protected witnesses are not divulged.
Case Title - Pratik Bhowmik v. State of West Bengal [C. R. M. (DB) 3590 of 2022]
Case Citation: 2022 LiveLaw (Cal) 353
The Calcutta High Court held that once offences under UAPA are added to a case/FIR, a Magistrate is denuded of his power to remand the accused in terms of Section 167 of the Code of Criminal Procedure (as amended under UAPA) beyond a period of 30 days. The bench of Justice Joymalya Bagchi and Justice Ajay Kumar Gupta held thus as it concluded that a Magistrate neither has the power to try, nor commit cases involving UAPA, and therefore, once the addition of offences under UAPA is made to the FIR, the same would denude the Magistrate of the power to remand an accused beyond thirty days. Further, the Court also ruled that after the expiry of the said 30 days, the remand power can be exercised by the court which is empowered to take cognizance and try the offence, i.e. the Special Court and in its absence, the Court of Sessions.
Case Title: VAIBHAV SAMPAT MORE v. NATIONAL INVESTIGATION AGENCY THROUGH ITS CHIEF INVESTIGATION OFFICER
Citation: 2022 LiveLaw (Del) 537
The Delhi High Court has held that mere smuggling of gold without any connection whatsoever to threatening economic security or monetary stability of India cannot be a terrorist act under the Unlawful Activities (Prevention) Act.
A division bench comprising of Justice Mukta Gupta and Justice Mini Pushkarna granted bail to nine accused persons who had approached the Court by way of filing an appeal challenging the Trial Court order denying bail to them in a matter involving offences under sec. 16, 18, 20 of the UAPA and under sec. 120B, 204, 409 and 471 of IPC.
Case Title: EHTESHAM QUTUBUDDIN SIDDIQUE v. CPIO, MINISTRY OF HOME AFFAIRS
Citation: 2022 LiveLaw (Del) 867
The Delhi High Court has dismissed a plea filed by a convict in the Mumbai Twin Blast case (7/11 Bomb Blast case) challenging an order passed by the Central Information Commission (CIC) denying him information regarding the proposal and all documents concerning grant of sanction for prosecution under sec. 45(1) of the Unlawful Activity (Prevention) Act (UAPA).
Ehtesham Qutubuddin Siddique was convicted under the Maharashtra Control of Organised Crime Act, 1999 and National Investigation Act, 2008. He is presently serving his sentence in Nagpur Central Prison since July, 2006.
The CIC, while upholding the view taken by CPIO of Ministry of Home Affairs, had found that the disclosures would stand exempted under sec. 8(1)(a) of the RTI Act.
Case Title: SACHIN HINDURAO WAZE v. UNION OF INDIA & ORS.
Citation: 2022 LiveLaw (Del) 940
The Delhi High Court has ruled that the mere fact that the authority granting sanction for prosecution under Unlawful Activities Prevention Act (UAPA) is located in the national capital, will not give the court the jurisdiction to quash the order especially when all the ingredients, events and proceedings relating to the case are taking place in another jurisdiction.
A division of Justice Mukta Gupta and Justice Anish Dayal made the observation while dismissing the plea moved by former Mumbai police officer Sachin Waze for quashing of the order granting sanction to prosecute him under UAPA in theAntilia bomb scare case.
Rejecting the plea for lack of territorial jurisdiction, the court said:
"Having considered the facts and circumstances of the matter and the obvious forum conveniens for the petitioner, being a resident of Mumbai, seeking relief relating to proceedings underway in Mumbai, the special courts and authorities investigating and adjudicating the matter located in Mumbai, this Court finds no reason to clothe itself with territorial jurisdiction to adjudicate the relief sought in this petition."
Case Title: Manzar Imam v. NIA & Anr.
Citation: 2022 LiveLaw (Del) 999
The Delhi High Court has asked the trial court to decide the bail plea moved by an accused, who has been in jail for more than nine years in a case registered under Unlawful Activities (Prevention) Act, within a period of 75 days.
Manzer Imam, an alleged Indian Mujahideen operative, was arrested in August 2013 in a case registered by the National Investigation Agency (NIA) alleging that he, along with others, conspired to commit terrorist acts and made preparations for targeting prominent places in the country.
Justice Jasmeet Singh disposed of the bail plea after Imam's counsel withdrew the same with liberty to approach the trial court. The counsel appearing for NIA earlier argued that Imam had not exhausted the remedy to approach the special judge.
Case title - Md. Taher Ahmed Barbhuiya v. The State of Assam and another
Case Citation: 2022 LiveLaw (Gau) 19
The Gauhati High Court recently refused to quash an FIR registered against a man booked under the Unlawful Activities(Prevention) Act 1967 and Indian Penal Code for allegedly praising and glorifying 'Tehreek-e-Taliban' through his Facebook Post.
"At this initial stage it cannot be said that the action incorporated in Clause (a), (b), and (c) of Sub-Section (1) of Section 39 of the Unlawful Activities (Prevention) Act is not done with the intention to further the activities of a terrorist organization," remarked the Bench of Justice Robin Phukan as it refused to quash the FIR.
Case title - BORSHAHSRI BURAGOHAIN v. THE STATE OF ASSAM
Citation: 2022 LiveLaw (Gau) 50
The Gauhati High Court on Thursday granted bail to a college student (Borshahsri Buragohain/Borshahari Buragohain) who has been accused of writing a Facebook post allegedly supporting a banned terrorist organization United Liberation Front of Asom-Independent (ULFA-I).
The bench of Justice Ajit Borthakur granted her bail by observing that further continuation of her detention may not be required in the interest of the ongoing investigation. She was in judicial custody since May 18, 2022, i.e., for 64 days and was booked u/s 10(a)(iv)/13(1)(b) of the Unlawful Activities (Prevention) Act, 1967.
Case Title: The NIA vs. Akhil Gogoi
Citation: 2022 LiveLaw (Gau) 65
In a significant order, the Gauhati High Court's full bench has held that an order refusing to extend the period of detention of an accused beyond the period of 90 days up to 180 days under Section 43 D of the UAPA-1967 would be in the nature of a final order thus, the same is appealable under Section 21 of the NIA Act, 2008.
The Full bench of Justice Achintya Malla Bujor Barua, Justice Manish Choudhury, and Justice Soumitra Saikia concluded that an order refusing to extend the period of detention of an accused beyond the period of 90 days up to 180 days in terms of Section 43 D of the UAPA-1967 is a 'final order' as when such an order is passed, the proceedings come to an end and the rights of one of the parties [accused persons] are finally determined [to remain not in custody]
The Court further held that in such an order, the requirement of the other party [NIA] is also finally determined vis-a-vis its right to have the detention of the accused persons extended beyond 90 days up to 180 days.
Case Title: Dilip Bhavanishankar Yadav v. State Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 85
"Unless and until, the material is there to make outa case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(b) of the Gujarat Prevention of Anti Social Activities Act, 1985", the Gujarat High Court has opined.
The Bench comprising Justice Rajendra Sareen was hearing a special civil application against the order of detention dated December 2021 against the Petitioner herein under Section 3(2) of the Act.
Case Title: Aveshbhai @ Avalo Ganibhai GhoniyaThrough Brother Azimbhai Ganibhai Ghoni V/S The District Magistrate AndCollector & 2 Other(S)
Citation: 2022 LiveLaw (Guj) 129
"Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation ?If the answer is in the affirmative, the detention order will be illegal",the High Court affirmed.
The Bench comprising Justice Nirzar S Desai was hearing a petition against the order of detention passed by the Respondent authority under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act,1985. The Petitioner herein was detained and categorised as a 'dangerous persons' as defined under Section 2(c) of the Act.
Case Title: Anilsinh Laghubha Jadeja V/S StateOf Gujarat
Citation: 2022 LiveLaw (Guj) 285
The Gujarat High Court has reiterated that preventive detention orders can be interfered with at pre-execution stage, i.e., before the person accused is detained, if the said order is passed on vague, irrelevant grounds.
The Petitioner had filed the instant application since he apprehended being detained under Prevention of Anti-Social Activities Act (PASAAct) on the pretext of the FIRs for offences punishable under Sections 65AE, 81and 98(2) of Prohibition Act. He primarily contested that his alleged activity did not affect the maintenance of public adversely.
Case Title: Patel Bhaveshkumar Chandrakantbhai V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 356
The Gujarat High Court has held that commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain an accused.
The Bench comprising Justices SH Vora and RajendraSareen held:
"No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the the detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention."
Case Title: Dharmesh @Dhamo Ashokbhai Rana v. State of Gujarat
Citation: 2022 LiveLaw (Guj) 399
The Gujarat High Court, while hearing a petition challenging the detention of petitioner under the Gujarat Prevention of Anti SocialActivities Act, 1985 (PASA), has held that simpliciter registration of FIR/s cannot be held to have any nexus with the breach of maintenance of 'public order' under PASA and the authorities cannot detain a person merely upon the registration of an FIR.
The petitioner-detenue filed a petition challenging the order of detention which was passed by the respondent-authorities in exercise of powers conferred to them under section 3(2) of the PASA by bringing the detenue within the definitional scope of Section 2(ha) of PASA – which defines a'sexual offender.'
Case title - Farhat Mir v. Union Territory of J&K and another
Case Citation: 2022 LiveLaw (JKL) 7
While upholding a detention order, the Jammu and Kashmir and Ladakh High Court recently observed that our Constitution guarantees various freedoms and personal liberty to all persons in our Republic, however, the constitutional guarantee of such freedoms and liberty is not meant to be abused and misused. The Court was also of the view that Preventive detention is based on suspicion or anticipation and not on proof.
The Bench of Justice Tashi Rabstan observed thus while upholding the detention order passed against one Farhat Mir preventive detention to prevent the detenu from smuggling timber and has been directed to be lodged in Central Jail, Kotebhulwal, Jammu.
29. To Classify Detenue As 'Notorious Stone Pelter' Not Sufficient To Invoke Preventive Detention Powers: J&K&L High Court
Case Title - Shabir Ahmad Malik v. Union Territory of J&K and another
Case Citation: 2022 LiveLaw (JKL) 9
The Jammu and Kashmir and Ladakh High Court quashed a detention order passed against one Shabir Ahmad Malik as it noted that to classify the detenu as a 'notorious stone pelter' cannot be sufficient to invoke the statutory powers of the preventive detention.
Having perused the grounds of detention, the Bench of Justice Tashi Rabstan found no cogent explanation as regards the live-link between the prejudicial activities of the Detenue and the purpose of detention and as a result whereof, the impugned order of detention was quashed.
Case Title: Tariq Ahmed v. Union Territory of J & K & Ors.
Citation; 2022 LiveLaw (JKL) 13
The Jammu & Kashmir & Ladakh High Court has clarified that a detenue has right to be informed about the 'time-limit' within which he is required to make representation against his detention.
A Single Judge Bench of Justice M.A. Chowdhary further held that non-compliance of the aforesaid requirement is a procedural irregularity, on the basis of which detention may be quashed. The Court observed,
"This is another reason, as to why the impugned order would be vitiated since the detenue's right to make a representation to the detaining authority was only available to him till approval of detention order by the Government, it follows as a logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to it i.e., till the approval of the detention order by the State Government."
Case title - Rajesh Dogra @ Mohan Cheer v. UT of J & K & Ors.
Citation: 2022 LiveLaw (JKL) 17
The Jammu and Kashmir and Ladakh High Court quashed the detention order passed against Rajesh Dogra, the prime convict in the murder case of 'Don' Sanjay Kumar alias 'Bakra'- the case that rocked Jammu in the year 2006.
The Bench of Justice M. A. Chowdhary noted that the detention order dated November 29, 2021 [passed under the Jammu & Kashmir Public Safety Act, 1978], relied upon 7 FIR against Dogra, however, only one among those 7 FIRs had been registered in the year 2020, and the rest were lodged upto the year 2006.
Case Title: Anil Singh V/s UT of J&K and another
Citation: 2022 LiveLaw (JKL) 20
The Jammu & Kashmir and Ladakh High Court quashed a detention order passed by a District Magistrate, Samba while observing that the order was passed without keeping in mind the constitutional safeguards.
Justice Sindhu Sharma observed:
"The respondents have not adhered to the legal and constitutional safeguard while passing the impugned order of detention. Therefore, the order of detention is unsustainable. This petition is, accordingly, allowed and impugned detention order No. 03/PSA of 2021 dated 16.06.2021 passed by District Magistrate, Samba is quashed. The detenu is directed to be released from preventive custody forthwith, if he is not required in connection with any other case."
Case Title: Javid Ahmad Mir Versus UT of J&K and another
Citation: 2022 LiveLaw (JKL) 23
The Jammu and Kashmir High Court set aside a detention order while differentiating between disturbance in public order and threat to security of State.
The order was passed by Justice Vinod Chatterji Koul who said that an act may affect public order, but not necessarily the security of the State:
"Every infraction of law must necessarily affect order, but an affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping in the same that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and security of the State."
Case Title: MUSHTAQ AHMAD AHANGAR Vs. UNION TERRITORY OF J&K & ANR.
Citation: 2022 LiveLaw (JKL) 25
The Jammu and Kashmir and Ladakh High Court observed that preventive detention orders can be passed even when a person is in police/ judicial custody or involved in a criminal case but for doing so, compelling reasons are to be recorded.
Justice Sanjay Dhar observed:
"It is trite law that the preventive detention orders can be passed even when a person is in police/judicial custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law."
Case Title: MOHAMMAD HANIEF BHAT Vs. UT OF J&K & ANR
Citation: 2022 LiveLaw (JKL) 26
Jammu and Kashmir High Court quashed a preventive detention order declaring it to be illegal on ground that all important documents related to the matter were not provided to the detenue.
Justice Sanjay Dhar observed:
"Contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record."
Case Title: Waheed ur Rehman Parra V/s UT of J&K
Citation : 2022 LiveLaw (JKL) 35
The Jammu and Kashmir and Ladakh High Court recently allowed bail to a man who was booked under Unlawful Activities (Prevention) Act, 1967, merely because he was seen in the company of a member of a terrorist organization.
While granting bail, the Court observed that merely seeing him with a member of a terrorist organization is not enough to attract UAPA charges.
"It is, thus, clear that merely the accused having been seen in the company of a member of a terrorist organization without doing anything more is not enough to attract the applicability of UAPA Act. Keeping in view the totality of circumstances and the discussion made hereinabove, we are of the considered view that this appeal deserves to be allowed. Ordered accordingly."
Case Title : Riyaz Ahmad Mir V Union Territory of J&K & Ors.
Citation : 2022 LiveLaw (JK) 41
A bench of Justice M. A Chowdhary while quashing a detention order held that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, there must be compelling reasons for the detaining authority to do so. The detaining authority is bound to record the compelling reasons as to why the detenu could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law.
38. Offences Alleged Against A Person Must Fall Within Realm Of Disturbing "Public Order" To Warrant Preventive Detention: J&K&L High Court Reiterates
Case Title: Kamaljeet Singh Vs UT of J&K
Citation: 2022 LiveLaw (JKL) 63
A single bench of Justice Rajnesh Oswal held that a detention order passed by a competent authority under Sec 8(1) of J&K Public Safety Act on the ground of disturbance of law & order situation is not sustainable in law as the said provision clearly prescribes "prejudicial to Public order" as a ground to issue detention orders.
The bench further observed that a person may be detained under preventive detention laws provided the case falls within the parameters of law laid down under the Act and the perusal of detention order reveals that in all the FIRs, the allegations against the petitioner are with regard to the commiss ion of offences those do not fall within the realm of "public order" as defined by section 8(3) of the Act.
39. UAPA | Only Special Court/Session Court Empowered To Decide Bail Applications, Judicial Magistrate Has No Jurisdiction: J&K&L High Court
Case Title: State of J&K through P/S Bandipora Vs Hilal Ahmad Parray
Citation: 2022 LiveLaw (JKL) 77
The Jammu and Kashmir and Ladakh High Court held that only the Special Court or in the absence of a Special Court, a Sessions Court exercising powers of a Special Court, can entertain and grant/refuse bail to a person accused of an offence under the provisions of Unlawful Activities Prevent Prevention Act. It further observed that a Judicial Magistrate has neither the jurisdiction to take cognizance of offences under the said Act nor he is vested wit with jurisdiction to try such offences or grant/refuse bail.
40. J&K Public Safety Act | Courts Cannot Substitute Decision Of Detaining Authority Taken As A Precautionary Measure To Protect Society: High Court
Case Title: Faheem Sultan Gojree V/s UT of J&K and another
Citation: 2022 LiveLaw (JKL) 113
Justice Sindhu Sharma observed
"The decision of the Detaining Authority cannot be substituted by the Court while scrutinizing the detention order. Since preventive detention is a precautionary measure to protect the society from activities which may cause harm to their life and liberty. Preventive detention is a precautionary measure to protect the society from the activities that are likely to deprive a large number of people of their rights and protect them from damaging to their life and property."
41. Person Arrested Under UAPA Has Bleak Chances Of Bail, Detaining Authority Must Show Compelling Reasons For His Preventive Detention: J&K&L High Court
Case Title: Sakib Ahmad Sheroo Vs UT of J&K & Ors
Citation: 2022 LiveLaw (JKL) 114
Justice Sanjay Dhar observed
"The petitioner has been booked in an offence falling under Chapter IV of the ULAP Act and in view of the provisions of Section 43-D of the said Act, the chances of the petitioner getting bail were very remote. Thus, there were no compelling circumstances for the detaining authority to pass the impugned order of detention. The Detaining Authority was bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and, as already discussed, there is no such material on record."
42. Preventive Detention | Only Those Acts Which 'Gravely Prejudice' Public Order Qualify As Acts Prejudicial To Security Of State: J&K&L High Court
Case Title: Jalal Ud Din Ganai Vs UT of J&K
Citation; 2022 LiveLaw (JKL) 119
The Jammu and Kashmir and Ladakh High Court on ruled that every act which is prejudicial to the security of the state would qualify to be an act prejudicial to the public order but the reverse is not true. It is only the acts prejudicial to the public order which are of 'grave nature' that would qualify to be termed as acts prejudicial to the security of the state, Justice Sanjay Dhar Stated.
"The expressions "security of the state" and "public order" are quite distinct from each other, inasmuch if contravention of law affects the community or public at large, it amounts to disturbance of public order whereas if the disturbance of public order is of grave nature which affects the security of the state, then the same constitutes an act that would affect the security of the state. Thus, every act which is prejudicial to the security of the state would qualify to be an act prejudicial to the public order but reverse is not true", the bench noted.
43. Pendency Of Prosecution No Bar To An Order Of Preventive Detention :J&K&L High Court
Case Title: Manzoor Ahmad Lone Vs UT of J&K & Ors
Citation: 2022 LiveLaw (JKL) 138
The Jammu and Kashmir and Ladakh High Court ruled that the pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order.
"An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order," Justice Moksha Khajuria Kazmi observed.
Case Title : Abdul Bari Naik v. State of J&K and others
Citation : 2022 LiveLaw (JKL) 141
The bench of Justice Sanjay Dhar noted that as per the investigation conducted by the investigating agency, the petitioner is trying to motivate the common people towards separatism and he is provoking them against the police and security forces as also against district administration.
"In one of the video clips, the petitioner is seen conveying to his audience that the children of Kashmir are being oppressed by the security forces and the army. In yet another video clip, the petitioner is conveying that the army is hampering the movement of the people and it is obstructing the children from going to schools which has led to closure of schools. In yet another video clip, the petitioner is seen pleading cause relating to release of a person who was in custody for indulging in stone pelting and terrorist activities," the Court further remarked.
Case Title: UT Of J&K Vs Javid Ahmad Shah
Citation: 2022 LiveLaw (JKL) 144
The Jammu & Kashmir & Ladakh High Court ruled that offering of funeral prayers of a killed militant by the public at large cannot be construed to be anti-national activity of that magnitude to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution.
The Division bench of Justices Ali Mohammd Magrey and MA Chowdhary observed,
"Offering of funeral prayers of a killed militant by the public at large, even at the instance of the respondents herein, who are stated to be elderly people of their village, cannot be construed to be anti-national activity of that magnitude so as to deprive them of their personal liberty as guaranteed under Article 21 of the Constitution of India"
Case Title: Khursheed Ahmad Bhat Vs UT of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 165
The Jammu and Kashmir and Ladakh High Court, while quashing a preventive detention order, observed that offence of cheating and fraud, without having wider ramifications, cannot be made the basis for issuing a detention order in the name of maintaining public order.
Case Title :Ravinder Kumar Gupta Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 173
The Jammu & Kashmir & Ladakh High Court, while quashing a detention order under J&K Public Safety Act, recently ruled that acts of land grabbing do not fall within the purview of the activities prejudicial to the maintenance of public order as per the provisions of the Jammu and Kashmir Public Safety Act, 1978
Case Title : Rupesh Kumar Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 183
The Jammu and Kashmir and Ladakh High Court reiterated that unexplained delay in execution of warrant of detention throws a serious and considerable doubt on the genuineness of subjective satisfaction of the Detaining Authority leading to legitimate inference that the detaining authority was not really and genuinely satisfied about the necessity of detaining the detenu with a view to prevent him from acting in any prejudicial manner.
Case Title : Sajad Ahmad Bhat Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 208
The Jammu and Kashmir and Ladakh High Court ruled that in absence of the material supporting the allegations or specifying details of such incident, it cannot be held that some activities are prejudicial to the maintenance of peace, public order and tranquility and that too when there is not any whisper in the record substantiating these vague allegations.
Explaining the effect of not specifying the details in the impugned order the bench observed that since no particular incident, event or details have been reflected in the grounds of detention which is the basis for passing the impugned order, accordingly, the detenue has been denied of effective representation as the detenue is not aware of the material which has been applied against him while passing the order impugned.
Case Title : Royal Singh Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 255
The Jammu and Kashmir and Ladakh High Court observed that a District Magistrate while passing the order of detention cannot describe the period of detention of the detenue, because it is the Government which after approving the detention provides the period till the detenue would be detained.
51. Scheduled UAPA Offences Can Be Probed By Investigating Agency Of State Govt: JKL High Court
Case Title: Mohammad Ayoub Dar Vs State of J&K
Citation: 2022 LiveLaw (JKL) 257
The Jammu and Kashmir and Ladakh High Court ruled that the provisions of the National Investigation Act (NIA Act) Act do not prohibit the investigation of the Scheduled offences which include the offences under the ULA(P) Act, by Local Investigating Agencies.
Case Title: Mohd Yousuf Vs UT of J&K.
Citation: 2022 LiveLaw (JKL) 270
Setting aside an order directing Anti Corruption Bureau to inquire how a litigant managed to get hold of the detention order and certain official communication prior to execution of the order, the Jammu and Kashmir and Ladakh High Court on Wednesday said such documents issued by a public servant are supposed to be in a public domain and they were neither classified nor relating to official secrets.
Case Title : Akash Karka Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 274
Dismissing a plea of habeas corpus petition, the Jammu & Kashmir and Ladakh High Court on Friday observed that failure on the part of detaining authority to supply a translated copy of detention order does not vitiate the detention.
A bench of Justice Wasim Sadiq Nargal said:
"From a bare perusal of the provisions of the Public Safety Act, 1978 dealing with preventive detention, read with the constitutional mandate under Article 22(5) of the Constitution of India, I do not find that such requirement is mandatory and failure on part of detaining authority to supply translated copies in all cases vitiates the detention."
Case Title: Zuhab Hameed Shakeel Manna @ Zohib Manna v. The National Investigation Agency CaseNo: Writ Petition No.5913 OF 2022
Citation: 2022 LiveLaw(Kar) 121
The Karnataka High Court recently rejected a petition seeking default bail filed by an accused alleged to be having links with banned terrorist organizations. The applicant allegedly entered into criminal conspiracy to radicalize and motivate gullible Muslim youths to join IslamicState in Iraq and Syria ('ISIS'). A single judge bench of Justice M Nagaprasanna while rejecting the plea filed by Zuhab Hameed Shakeel Manna @Zohib Manna said, "I do not find any error or reason rendered by theInvestigating Officer as put forth by the SPP to be contrary to Section 43D(2)of the Act."
Case Title: SALEEM KHAN v STATE OF KARNATAKA Case No: CRIMINAL APPEAL No. 130/2021
Citation: 2022 LiveLaw(Kar) 137
The Karnataka High Court recently granted bail to one SaleemKhan, an alleged member of the Al-Hind Group which is allegedly reported to be involved in terrorist activities.
A division bench of Justice B Veerappa and Justice S. Rachaiah said, "Mere attending meetings and becoming Member of Al-Hind Group, which is not a banned organization as contemplated under the Schedule of UA(P) Act and attending jihadi meetings, purchasing training materials and organizing shelters for co-members is not an offence as contemplated under the provisions of section 2(k) or section 2(m) of UA(P) Act."
Case Title: IrfanPasha v. National Investigation Agency
Case No: CRIMINAL APPEAL No. 673/2021
Citation: 2022 LiveLaw(Kar) 244
The Karnataka High Court has said that it is not necessary that a person being prosecuted for "terrorist act" defined under Section15 of the Unlawful Activities (Prevention) Act, 1967, should be a member of a terrorist organization.
Case Title: Ateeq Ahmed & others And National Investigating Agency
Case No: CRIMINAL APPEAL No.814/2022 C/W CRIMINAL APPEAL No.788/2022
Citation: 2022 LiveLaw (Kar) 306
The Karnataka High Court has said that use of petrol bottles while attacking police personnel and police stations by accused persons during the Bengaluru Riots of 2020 would prima-facie constitute 'Terrorist Act' under Section 15 of Unlawful Activities (Prevention) Act, 1967.
58. Karnataka High Court Dismisses Plea Challenging Centre Giving Immediate Effect For PFI Ban
Case Title: NASIR PASHA v. UNION OF INDIA
Case NO: WP 21440/2022
Citation: 2022 LiveLaw (Kar) 489
The Karnataka High Court on Wednesday dismissed a petition filed questioning the notification issued by the Union Ministry of Home Affairs, declaring the Popular Front of India and its associates or affiliates or fronts as "unlawful associations" with 'immediate effect' for a period of 5 years in exercise of the powers under Sec 3(1) of UAPA.
A single judge bench of Justice M Nagaprasanna pronounced the order on the petition filed by one PFI activist named Nasir Pasha through his wife, as he is presently in judicial custody.
Case Title: Roopesh v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 130
The Court discharged alleged Maoist leader Roopesh of charges under Unlawful Activities (Prevention) Act and sedition under Section 124A (sedition) of the Indian Penal Code on the ground of irregularities in the order granting sanction for prosecution. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran noted that the word 'shall' in the Act and the Rules cannot be said to be merely directory and pointed out that Section 45(2) specifically speaks of the recommendation of the authority and the sanction by the appropriate Government 'shall' be within such time as prescribed.
Case Title: Suresh Upadhyay vs. State of Madhya Pradesh & others
Citation: 2022 LiveLaw (MP) 47
The High Court of Madhya Pradesh recently set aside the order of preventive detention passed by the District Magistrate, holding that he failed to discharge his obligation, in as much as forwarding the case to the State Government after nearly 10 days of passing the respective order.
The division bench of Justice Sheel Nagu and Justice D.D. Bansal was essentially dealing with a writ petition filed by the Petitioner, wherein he was challenging the order of preventive detention passed by the District Magistrate (DM), Bhopal, by invoking Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter, 'Act of 1980').
Case Title : Rajnish Kumar Tiwari V The State Of Madhya Pradesh and ors
Citation: 2022 LiveLaw (MP) 86
The Madhya Pradesh High Court set aside an order of preventive detention on the ground that the detenu was not given an opportunity to submit a representation before the detaining authority, which was in violation of his fundamental rights under Article 22(5) of the Constitution of India.
The division bench of Justice Sheel Nagu and Justice M.S. Bhatti was essentially dealing with a writ petition filed by the Petitioner, wherein he was seeking directions of the Court to quash the order of his detention, passed by the District Magistrate pursuant to his power under Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
Case Title: Sadam Hussain v. State and another
Citation: 2022 LiveLaw (Mad) 373
The Madras High Court recently granted bail to a man after observing that the entire case against him was based on suspicion and case was taken based on the confession statement. Justice S Vaidyanathan and Justice AD Jagdish Chandira also observed that there was no complaint made against the accused.
The court had also noted that no offence had taken place and no complaint was actually made by Kumaresan. The entire case was merely on the suspicion that arose in the mind of a police officer while doing his routine rounds. The court was therefore convinced that there was no prima facie case against the appellant.
Case Title: T.Keeniston Fernando v. State
Citation: 2022 LiveLaw (Mad) 426
The Madras High Court recently denied bail to two Srilankan nationals, who are accused of attempting to siphon off funds from the bank account of a deceased woman in Mumbai to fund LTTE.
The bench of Justice PN Prakash and Justice Teeka Raman denied bail after observing that the indefeasible right for default bail stood extinguished as the National Investigation Agency (NIA) had already submitted the final report.
Case Title: Mir Anas Ali v State
Citation: 2022 LiveLaw (Mad) 525
The Madras High Court recently directed the Tamil Nadu State Judicial Academy to conduct a "refresher course" for judicial officers focusing on special enactments like Unlawful Activities Prevention Act (UAPA), Prevention of Children from Sexual Offences (POCSO) Act, SC/ST Act and NDPS Act.
The direction came from a bench of Justice P.N. Prakash and Justice N. Anand Venkatesh after it observed that the lower courts had failed miserably to follow proper procedure while dealing with the bail plea of a man accused under various provisions of IPC and UAPA.
The court noted that since the appellant was charged under the UAPA, only a special court would have the jurisdiction. As per a full bench decision of the Madras High Court in Jaffar Sathiq v. State, till the Special Courts are constituted by the State, the Court of Session alone will have the jurisdiction to entertain bail applications.
Case Title: Sunitha v. Additional Chief Secretary to Government and others
Citation: 2022 LiveLaw (Mad) 462
Expressing shock over Tamil Nadu government's abuse of preventive detention laws, the Madras High Court has said that it will impose costs on the State whenever a preventive detention order is found to be illegal.
The division bench of Justice MS Ramesh and Justice Anand Venkatesh gave the ruling in two habeas corpus petitions filed by relatives of the detenues under The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual offenders, Slum-Grabbers and Video Pirates Act, 1982.
The court held that callous indifference towards the violation of fundamental rights guaranteed under Article 21 of the Constitution clearly constituted a "Constitutional Tort". It added that such detention orders, which are passed ignoring the law, only to be set aside, clearly shows the State's refusal to follow the law.
66. Appeal U/S 21 NIA Act Not Maintainable Against Order Framing Charges: Meghalaya High Court
Case Title: Dimchuingam Ruangmei Vs. The National Investigation Agency
Citation: 2022 LiveLaw (Meg) 40
The Meghalaya High Court has held that an order framing charges under stringent provisions of UAPA cannot be challenged in appeal under Section 21 of the National Investigation Agency Act.
A bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh observed that the scheme of the NIA Act envisages speedy process of trial and finality of action. Thus, the appeal provision in Section 21 of the NIA Act must be read exactly as it says and a broader interpretation thereof that would stretch the process would not be permissible.
Case title - Smti. Anjana Wahlang Vs. State of Meghalaya
Case Citation: 2022 LiveLaw (Meg) 41
The Meghalaya High Court on Thursday granted bail to a man booked under UAPA for allegedly posting on Facebook that the Chief Minister of the State, Conrad Kongkal Sangma should be killed by Hynniewtrep National Liberation Council (HNLC).
For the uninitiated, the HNLC is an insurgent group that operates in Meghalaya's Khasi and Jayantia hills region. It aims to develop Meghalaya as a province exclusively for the Khasi tribe and free it from 'domination' by the Garo tribe. The group took responsibility for many violent incidents that have taken place in the state in recent past.
The bench of Justice W. Diengdoh took into account the statement of the accused that he was under the influence of alcohol and was alone at his home when he started browsing his Facebook account but he could not remember whether he had posted anything on his Facebook page.
Case Title: Jasbir Singh v. State of Punjab
Citation: 2022 LiveLaw (PH) 327
The Punjab and Haryana High Court recently granted bail to a person who had been in custody for two and a half years in a UAPA case.
"... there is an apparent violation of Article 21 of the Constitution of India and in view of the law laid down by a three Judge Bench of the Apex Court in 'Union of India Vs. K.A. Najeeb', AIR 2021 3 SC 712, specially keeping in view the leisurely fashion in which the State is choosing to proceed on the prosecution and it, thus, wholly responsible for grant of the benefit to the present appellant," said the court.
69. Gold Smuggling Can't Be Treated As 'Terrorist Act' Under UAPA: Rajasthan High Court
Case Title: Azaz Khan v. N.I.A. through Special PP and other connected matters
Citations: 2022 LiveLaw (Raj) 159
The Rajasthan High Court observed that Customs Act is not included in Schedule-II of the UA(P)A and thus smuggling of gold and that too of a quantity which is bailable under the Customs Act cannot be treated as Terrorist act.
The court examined the question whether Section 15(1)(a)(iiia) of the UA(P)A, which was inserted in the year 2012, was meant to include the smuggling of gold in the category of 'other material'.
Notably, the single bench of this court in Mohammad Aslam v. Union of India & Ors had held that gold is a vulnerable material, smuggling of which can be done with intent to threaten or likely to threaten the economic security of the country and thus considered to be a 'terrorist act'.
