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2006 DIGILAW 187 (JK)

Mohd. Younis Dar v. State Of J. &K.

2006-07-31

J.P.SINGH

body2006
1. Mohd Younis Dar was detained by District Magistrate, Srinagar, vide his order No. DMS/PSA/53/2005 dated 19.11.2005 on the basis of following grounds of detention:- "Whereas, perusal of record provided by Superintendent of Police, Ganderbal, reveals that you are a local trained militant of H.M. outfit operating in the valley. The aim and object of this outfit is to liberate the State of Jammu and Kashmir from the Union of India and its annexation with Pakistan by waging war against the lawfully established Government. Whereas, you were working as Tangawala and was motivated by two militants @ Umer and @ Adnan of HM outfit. You being a poor fellow fell into their trap and started working as an OGW/runner for them. You were initially used as a guide in the general area of Anantnag, but with the passage of time you became a loyal member of these two ANEs and worked as per their desire. You were also used in carrying their weapons from one place to another. On 18th of July 2005 while on way towards Nunner Ganderbal you were apprehended by 05 RR at Malshahibagh and following recovery was made from your possession. 1. UBGL 01 2. UBGL Grenade 04 3. IED Explosive 03 Kg In this connection a case under FIR No. 65/2005 u/s 7/25 I.A. Act stands registered by P/S Ganderbal against you. It is clear that your activities are highly prejudicial 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." 2 He has questioned his detention by this petition filed through Gh. Mohammad Dar, his father, inter alia, on the following grounds:- (i) The detenue, after his arrest in F.I.R. No. 65 of 2005 under Section 7/25 Arms Act, was released on bail by learned Sessions Judge, Srinagar, which fact was not considered by the detaining authority before directing the action of the petitioner in preventive custody. (ii) The detenue was not provided with the material, which had been relied upon by the detaining authority at the time of issuance of detention order, thereby depriving the detenue of his constitutional right under Article 22(5) of the Constitution of India to make an effective representation against his detention. 3. (ii) The detenue was not provided with the material, which had been relied upon by the detaining authority at the time of issuance of detention order, thereby depriving the detenue of his constitutional right under Article 22(5) of the Constitution of India to make an effective representation against his detention. 3. The detaining authority, in its reply affidavit, has not said anything as regards the plea of the detenue regarding his release on bail by learned Sessions Judge, Srinagar. Regarding the plea of non-supply of material relied upon by the detaining authority, all that it says in reply is that the detenue must show that non-supply of material had impaired the right of the detenue to make an effective and purposeful representation. Detention order has been supported by the detaining authority by saying that the detenue is local trained militant of Hizab-ul-Mujahedin banned outfit and was working as Tangawala. He was motivated by two militants namely Umer and Adnan of the outfit and he being a poor fellow fell into the trap and started working as an over ground worker/runner for them. The detenue had been alleged to have been working as a guide, who later turned to be a loyal member of the anti national- elements. 4. Detention records have been produced by Sh. M. A. Wani, learned Dy. AG. 5. I have heard learned counsel for the parties and perused the records. 6. Section 8 of the J&K Public Safety Act, 1978, empowers the Government and the officers mentioned in Section 8(2) to detain any person if they are satisfied with respect of that person that with a view to prevent him from acting in any manner prejudicial to the v security of the State, it was necessary to make an order for the detention of such person. Section 8 contemplates detention of only those persons, in preventive custody, whose activities shall be prejudicial to the security of the State. In other words, it would mean that the detaining authority must be satisfied that the persons sought to be detained if not so detained would indulge in activities prejudicial to the security of the State. 7. Such satisfaction needs to be recorded in the grounds of detention indicating the material on the basis whereof such satisfaction was recorded. In other words, it would mean that the detaining authority must be satisfied that the persons sought to be detained if not so detained would indulge in activities prejudicial to the security of the State. 7. Such satisfaction needs to be recorded in the grounds of detention indicating the material on the basis whereof such satisfaction was recorded. This is so because Article 22(5) of the Constitution of India, provides a right to the detenue to make representation against his detention on the basis of the grounds of detention which are required to be supplied to him in terms of the previsions of the Public Safety Act, 1978. 8. The grounds of detention recorded by District Magistrate, Srinagar, do not indicate any such satisfaction having been recorded by him that the detenue was likely to indulge in activities prejudicial to the security of the State. The grounds of detention, refer only to the registration of a case and the detention of the petitioner. These grounds are significantly silent as to the satisfaction of the District Magistrate that the detenue would indulge in activities prejudicial to the security of the State. Detention order issued by the District Magistrate, Srinagar, therefore, becomes unsustainable because of non-recording of requisite grounds and satisfaction by the District Magistrate as to detenues indulging in activities prejudicial to the security of the State. 9. Learned District Magistrate has recorded his satisfaction on the basis of records supplied to him by Superintendent of Police, Ganderbal. These records, which have been relied upon by the District Magistrate have not been supplied to the detenue, thereby depriving him of his right to make an effective representation and consequentially violating Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978. 10. I do not find any merit in the submission of Sh. Wani that no prejudice had been caused to the detenue because of the non-surely of material relied upon by the detaining authority for his detention because non-supply of material relied upon by the detaining authority raises a presumption of prejudice to the detenue and no proof therefor was required to be led by the detenue while questioning his detention. 11. Wani that no prejudice had been caused to the detenue because of the non-surely of material relied upon by the detaining authority for his detention because non-supply of material relied upon by the detaining authority raises a presumption of prejudice to the detenue and no proof therefor was required to be led by the detenue while questioning his detention. 11. Non-supply of the material relied upon by the District Magistrate to the detenue has, thus, prejudiced him in making requisite representation in exercise of his constitutional right under Article 22(5) of the Constitution of India. 12. For all what has been said above, order of detention passed by District Magistrate, Srinagar, becomes unsustainable and is, accordingly, quashed. While allowing this petition, it is directed that the respondents shall release Mohd Younis Dar @ Danish, son of Ghulam Mohd Dar, resident of Hasan Pora Bagh, Tehsil Kulgam, District Anantnag, forthwith, if not required in any other case. 13. Detention records he handed over to Sh. M. A. Wani, learned Dy. AG.