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2006 DIGILAW 184 (JK)

Saleema v. State Of J. &K.

2006-07-31

J.P.SINGH

body2006
1. Parvaiz Ahmad Dar, code name Mattoo, was detained vide District Magistrate, Srinagars order No. DMS/PS A/87/2005 dated 16.02.2006. 2. His mother has approached this Court, seeking quashing of detention order dated 16.02.2006. 3. Sh. M. A. Qayoom, learned counsel appearing on behalf of the detenue, though initially referred to some facts to demonstrate that the detention was illegal, yet during the course of hearing of the petition he confined his submission to two main grounds:- (i) The District Magistrate had recorded his satisfaction on the basis of records produced by Senior Superintendent of Police, Srinagar. These records, according to the learned counsel, were not made available to the detenue thereby depriving him of his right to make an effective representation in terms of Section 13 of the Public Safety Act, 1978, against his detention. (ii) After having admitted in the grounds of detention that the activities of the detenue had ceased with his arrest on 13.10.2005, there was no material before the District Magistrate, Srinagar, to come to the conclusion that the detenue had indulged in any activities while on bail, which would be prejudicial to the security of the State. 4. District Magistrate, Srinagar, has filed his counter affidavit on the basis whereof Sh. M. A. Beigh, learned Dy. AG, submits that the District Magistrate was aware of detenues being on bail and had ordered the detention of the son of the petitioner because he was satisfied that his activities were prejudicial to the security of the State. Learned counsel submitted that the detenue had not proved that any prejudice had been caused to him because of the non-supply of material relied upon by the District Magistrate. 5. I have considered the submission of learned counsel for the parties and perused the detention records produced by Sh. Beigh. 6. Before dealing with the submissions raised by learned counsel for the parties, I will refer to the grounds of detention on which the son of the petitioner was detained. These grounds, read thus:- "1. Whereas, perusal of record provided by Senior Superintendent of Police, Srinagar reveals that you are affiliated with LeT outfit, the most dreaded organisation in the State. The aim and objective of the organisation is to secede the State of J&K from the Union of India and to annex it with Pakistan. 2. These grounds, read thus:- "1. Whereas, perusal of record provided by Senior Superintendent of Police, Srinagar reveals that you are affiliated with LeT outfit, the most dreaded organisation in the State. The aim and objective of the organisation is to secede the State of J&K from the Union of India and to annex it with Pakistan. 2. Whereas, you came into contact with one Javaid Ahmad Bhat S/O Wali Mohammad Bhat R/O Kader Kulgam, a terrorist of LeT outfit, who motivated you join militancy. You got readily motivated and joined LeT outfit. After some time Javaid Ahmad Bhat introduced you to the District Commander of LeT for Anantnag District namely Abu Maaz @ Muzamil and other terrorists of LeT namely Akmal Hyder and Ishfaq. These terrorists encouraged you enjoining LeT and imparted arms training to handle AK-47 riffle, pistol and grenade. Since you were studying in Srinagar and were putting up with you father at Jawahir Nagar. Abu Maaz directed you to work for LeT outfit in District Srinagar. Accordingly you started monitoring the routine movement of security forces/police in District Srinagar and used to pas on the information to the local operatives of LeT in District Srinagar to whom you had been introduced by Abu Maaz. You were further directed to recruit some more local youths in Srinagar to assist you in your operations. Accordingly you motivated one Nasrullah Mir S/o Abdul Razak R/o Batamaloo and made him to join LeT outfit. 3. Whereas, In May 2005 Abu Maaz directed you to get some BSNL SIM cards for the terrorists of LeT outfit. You accordingly obtained BSNL SJM cards bearing Nos. 9419094525, 9419422342, 9419057324 and 9419441177 from Ji Sons Bakery and Dicson Electronics, Lal Chowk who are the BSNL Cell One Franchise Owners. 4. Whereas, on 12th of September, 2005 Javaid Ahmad Bhat, the terrorist of LeT outfit contacted you on phone and asked you to reach Sonwar at 1000 hours alongwith Nasrullah Mir. You alongwith Nasrullah Mir met Javaid at Sonwar where from you all left for Anantnag and reached Nagbal Anantnng, where Abu Maaz was waiting alongwith one more foreign terrorist namely Amjit. You alongwith Nasrullah Mir met Javaid at Sonwar where from you all left for Anantnag and reached Nagbal Anantnng, where Abu Maaz was waiting alongwith one more foreign terrorist namely Amjit. Abu Maaz informed you and Nasrullah Mir that on 161" of September, 2005 a suicidal attack is to be carried out on CRPF camp Karan Nagar and directed you and Nasrullah Mir to escort the nominated fidayeen Amjid R/0 Pakistan to CRPF camp Karan Nagar. Accordingly you and Nasrullah Mir brought the foreign terrorist Amjid from Anantnag to Batamaloo in the evening on 12th December, 2005 and arranged his slay in Masjid-e-Dawoocl at New Colony Batamaloo. 5. Whereas, on 15th of September 2005 Javaid Ahmad Bhat asked you and Nasrullah Mir on phone to reach Maltan Adda, Ananlnag. Accordingly you and Nasrullah Mir reached Mattan Adda Anantnag, where Javaid Ahmad Bhat was waiting for you. Javaid Ahmad Bhat pointed towards a white colour sumo and directed both of you to board the vehicle. Javaid further informed that some arms/ammunition has been concealed in the window cavity of the sumo and directed you to transport it to Srinagar and handover the same to Amjid for the proposed suicidal attack to be carried out on the CRPF camp Karan Nagar on 16th September 2005. Accordingly you and Nasrullah Mir boarded the Sumo and brought arms/ammunition to Batamaloo where you concealed it in Masjid-c-Dawood Batamaloo. 6. Whereas, on 16th September, 2005 as per plan the arms/ammunition were put in a carry bag brought by you and by boarding an auto rickshaw you and Nasrullah Mir accompanied the suicidal attacker Amjit and dropped him near CRPF camp Karan Nagar. However the suicidal attacker found it impossible to carry out the attack and returned back. 7. Whereas, in addition you have been also found involved in looking after the finances of LeT outfit and on various occasions delivered cash to Abu Maaz. 8. Whereas, your activities came to an end when you were arrested by P/S Rajbagh near Lal Ded Hospital on 13.10.2005. At the time of arrest one Chinese grenade was recovered from your possession. In this regard case FIR No. 96/05 u/s 7/25 Arms Act stands registered in P/S Rajbagh. The investigation of the case has been closed as challan and produced before the court of law on 8-11-2005. At the time of arrest one Chinese grenade was recovered from your possession. In this regard case FIR No. 96/05 u/s 7/25 Arms Act stands registered in P/S Rajbagh. The investigation of the case has been closed as challan and produced before the court of law on 8-11-2005. At the time of production of challan you had not been admitted to bail and as such were lodged in Central Jail, Srinagar as an under trial. However you have been subsequently admitted to bail and are presenting at large. 9. It is clear that your activities are highly pre-judicial to the maintenance of the security of the State. Under such compelling circumstances, it has become imperative to detain you under Public Safety Act, 1978 for which orders are being issued separately." 7. Second paragraph of the grounds of detention refers to the terrorist activities attributed to the detenue. Activities referred in this paragraph are based on some records stated to have been produced before the District Magistrate by SSP Srinagar. These activities, do not refer to any date, month or for that matter the year of such activities which have been attributed to the detenue. 8. Paragraph No. 1 of the grounds of detention does not indicate the description and nature of the record stated to have been produced by the SSP to the District Magistrate. There is nothing on the records produced by Sh. Beigh to show that the material stated to have been produced by SSP before the District Magistrate was supplied to the detenue This omission of the District Magistrate to refer to the description of the records sent to him by SSP; As Also his omission to refer to the date, month and year of the activities referred in paragraph No. 2 of the grounds, in my view, deprives the detenue of his right to make an effective representation against his detention. 9. No representation in terms of Section 13 of the J&K Public Safety Act, 1978, and Article 22(5) of the Constitution of India, may be contemplated unless requisite records relied upon by the detaining authority and the grounds of detention, are handed over and conveyed to the detenue so that he is in a position to understand the nature of the grounds, facts stated therein and the records relied upon. The detention order of the detenue, thus, becomes unsustainable. 10. The detention order of the detenue, thus, becomes unsustainable. 10. Learned State counsel was unable to point out any material either from the counter affidavit of the District Magistrate or from the records as to the activities of the detenue after his release on bail, which were considered by the District Magistrate to be prejudicial to the security of the State. 11. After having said that his activities came to an end with his arrest on 13.10.2005, District Magistrate was required to satisfy himself as to what were his activities after his arrest and release on bail, which were likely to be prejudicial to the security of the State warranting his preventive detention. Nothing of this sort appears to have happened in this case. The detention order, thus, exhibits the non-application of mind of the District Magistrate. I am not impressed with the submission of Sh. Beigh that the detenue had not proved any prejudice because of the non-supply of the material relied upon by the District Magistrate because the non-supply of the material and requisite details of the grounds of detention by itself proves that prejudice had been caused to the detenue. This presumption of prejudice to the detenue has not been rebutted by the respondents. 12. For all what has been said above, I hold the detention of the detenue to be violative of Sections 8 and 13 of the J&K Public Safety Act, 1978. Parvaiz Ahmad Dar, is, accordingly, ordered to be set free forthwith if not required in connection with the infraction of any penal law/s. Respondents are directed to take consequential steps pursuant to this direction. 13. The detention records be handed over to Sh. M. A. Beigh learned Dy. AG.