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2001 DIGILAW 181 (JK)

Altaf Ahmad Khan v. State Of J. &K.

2001-08-28

SYED BASHIR-UD-DIN

body2001
1. Altaf Ahmad Khan has been detained on 31-3-2001, on execution of the detention order DMS/PSA/66 dated 24-08-1998 passed by Respondent No.2, District Magistrate Srinagar, under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State. This order is under challenge in this petition on number of grounds. However, the counsel has confined his challenge only to following two grounds. 2. First, the counsel submits that the detenue despite being available to the respondents although was not taken in preventive custody till 31-3-2001. It took the state government about 31 months to execute the order. The detenue was appearing before the Court of 1st. Addl. District and Sessions Judge, Srinagar in FIR 89/98 of Police Station Maharaj Gunj, referred in grounds all along till he was acquitted in the case on 29-7-2000. This apart detenue had also filed H.C. Petition 39/1999 which was dismissed on 8-5-2000, on the ground that the order of detention could not be challenged in the facts and circumstances of that case at pre-execution stage The detenue was appearing in this case too, yet the government of J&K made no efforts to execute the order of detention and detain him till 31-3-2001. The counsel submits that all this goes to show that there is no proximate link between the grounds of detention and the purpose sought to be achieved by the detention. 3. Second, the counsel submits that the grounds Annexure-B, ex-facie show that the grounds are vague and run in omnibus terms and they lack in details. It is almost in essay on the activities of the detenue, shorn of material and necessary details. The FIR part given is obviously not in place after the said acquittal judgment of the court. 4. Counter has been filed by the detaining authority, Respondent No 2. Mr. Watali. GA, on the basis of counter filed by the respondent No 2, the detaining authority, submits that the detention order could not be executed as the detenue was not available and once the detenue was taken in custody all procedural mandatory requirements were followed He was even produced before the Advisory Board. The detenue could not be detained earlier as the detenue was absconding. The vageness of the grounds is denied. The detenue could not be detained earlier as the detenue was absconding. The vageness of the grounds is denied. The grounds of detention are stated to be specific and clear to give a road map of the activities of the detenue his indulgence in subversive activities. 5. From record, it is undisputeably made out that the detenue was facing a regular trial before Ist. Addl. District and Sessions Judge, Srinagar in FIR 89/98, registered at Police Station Maharajgunj in Session File 78/98. He was admitted to bail by that court and thereafter from 24-11-1998 to 29-7-2000 accused regularly attended the court when on the last date he was acquitted by the Court. Besides the detenue had filed a H.C. Petition before the Court which was dismissed by the court on 8-5-2000. He was pursuing his case before this court till the H.C. Petition was dismissed by the Court on the ground that same could not be challenged at pre-execution stage. 6. Mere mentioning of the words" he was absconding in Parawise reply, did not undo the facts as above. Infact neither in the detention record, produced by Mr. A.M. Watali. GA, nor in counter, there is any explanation for inordinate delay in execution of the warrant. Nothing is said why detenue despite being amenable to detention was not detained for long. 31 months after the detention order was passed. This fact when considered in conjunction with acquittal of the accused in FIR No. 89/98 as above, hardly leaves any doubt that the proximate and live link between the grounds and purpose of detention sought to be achieved on the detention is snapped in this case. 7. In K.P.M. Basheer Vs. State of Karnataka, & Anr. (AIR 1992 SC: 1353),lt is observed:- "...Under these circumstances, we are of the view that the order of detention cannot be sustained since the live an approximate link between the grounds and purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenue and detaining him..." 8. The other ground regarding vagueness and non-applications of mind to the facts of the case by the detaining authority would perse require examination of the grounds Annexure-PB. In the grounds, petitioner is stated to have joined the banned organizations and imparted weaponary training locally in handling of AK-Rifles, Pistols and lobing of Grenades. The other ground regarding vagueness and non-applications of mind to the facts of the case by the detaining authority would perse require examination of the grounds Annexure-PB. In the grounds, petitioner is stated to have joined the banned organizations and imparted weaponary training locally in handling of AK-Rifles, Pistols and lobing of Grenades. After receiving the training in sophisticated weapons he indulged in anti-national and subversive militant activities, besides he used to publish press-notes of banned organization through the local press indirectly. The detenue was the confidential activist of the banned T.U.M. outfit. The detenue was also engaged in motivation of the youth to join the ranks of militants and giving training to some boys of the locality in dealing with the explosive material. Besides the grounds speak of arrest of detenue under FIR 89/98 under Section 7/27 I.A. Act registered at Police Station M.R. Gunj Srinagar and recovery of Arms and ammunition. The FIR part and recovery of the ammunition is given lie by the judgment of the trial court (Addl. District and Sessions Judge) Srinagar and the other grounds run in omnibus terms and are too generalize. No specific details and particulars like Name(s), residence, etc. of the persons motivated and date(s) period (s), Place(s), name of the youth imparted training are given. The news papers allegedly carrying the press notes are not as well named. The grounds thoroughly lack in material and vital details. It is not discernible from record that these grounds are based on any material. In the fact situation and tell tale circumstances of this case, it cannot be said that on these generalized truncated grounds bereft of material there has been application of mind. It cannot be said that there was material and documents available with the detaining authority on which to draw subjective satisfaction. No light is shed on this aspect of the case either in counter or record. The detention is also vitiated on this count. 9. In result, the detention order and consequent detention of the subject in this case is vitiated and legally invalid. The detention order No. DMS/PSA/66 dated 24-8-1998 is quashed. The respondent /detaining authority/ officer having physical custody of Altaf Ahmad Khan S/o Mohd. Sultan Khan R/o Iddgah Ruthpora, Srinagar is directed to release him from custody and set him at liberty forthwith unless required in any case, offence or matter. 10. The detention order No. DMS/PSA/66 dated 24-8-1998 is quashed. The respondent /detaining authority/ officer having physical custody of Altaf Ahmad Khan S/o Mohd. Sultan Khan R/o Iddgah Ruthpora, Srinagar is directed to release him from custody and set him at liberty forthwith unless required in any case, offence or matter. 10. Inform concerned of this order Give copy of this order to detenue free of cost.