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2006 DIGILAW 188 (JK)

Shabir Ahmad Mir v. State Of J. &K.

2006-07-31

J.P.SINGH

body2006
1. Shabir Ahmad Mir has approached this Court for quashing Order No.DMS/PSA/118/05 dated 17.03.2006 directing his detention under Section 8 of the J&K Public Safety Act, 1978. His detention is founded on the grounds of detention, which read thus:- "Whereas, perusal of record provided by Superintendent of Police, Ganderbal reveals that you are an anti-national element/supporter and sympathizer of various militant outfits operating in valley. The aim and object of these outfits is to liberate the State of Jammu and Kashmir from the Union of India and is annexation with Pakistan by waging war against the lawfully established Government. Whereas, in the year 2004 you got contacted with LeT outfit and were motivated to join the outfit work for them as OGW. You thereafter remained active as a member of LeT outfit. Whereas, on 18- 01-2006 troops of police component, Ganderbal and 24 RR on a specific information conducted search operation in village Kachnambal and the following arms and ammunition were recovered near your house. 01. Chinese pistol 01 No. 02. Chinese pistol Rds. 04Nos. In this connection case FIR No. 12/06 u/s 7/25 A. Act of P/S Kangan stands registered against you. Whereas, on 23-01-2006 specific information was received by Police Component Ganderbal to the effect that the militants are going to conduct a meeting with regard to carrying out attacks on security forces with a view to disrupt forth coming Republic Day. A search operation alongwith 244 RR was carried out in the area of Kachnambal. During search operation militants while seeing the searching party tried to escape taking the advantage of hilly area/heavy snowfall. Searching party chased the militants and apprehended you alongwith Abdul Hamid Bhat S/O Abdul Jabbar R/O Kachnambal and recovered the following arms/ammunition from your possession. 01. Hand grenade 01 No. 02. IED 01 No. In this regard case FIR No. 14/06 u/s 7/25 Arms Act stands registered in P/S Kangan against you and Abdul Hamid Bhat. It is clear that your activities are highly prejudicial to the maintenance of 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. Learned counsel for the parties while making submissions have reiterated the grounds urged by their respective clients in their pleadings. 3. Under such compelling circumstances, it has become imperative to detain you under Public Safety Act, 1978 for which orders are being issued separately." 2. Learned counsel for the parties while making submissions have reiterated the grounds urged by their respective clients in their pleadings. 3. I have considered me submissions of learned counsel for the parties and perused the detention records produced by learned State counsel. 4. The detenue was in judicial custody in F.I.R. No. 14/2006 registered under Section 7/25 Arms Act in Police Station, Kangan, when detention order of 17.03.2006 was served upon him. 5. Learned District Magistrate, though apprised of the custody of the detenue by superintendent of Police, Ganderbal, does not reflect anything in the grounds of detention as to his being aware of detenues being in custody in F.I.R. No. 14/2006. It was probably for this reason, it appears, that he did not say anything in the grounds of detention as to the likelihood of the detenue indulging in activities prejudicial to the security of the State, which was a sine-qua-non for initiating preventive detention action in terms of Section 8 of the J&K Public Safety Act, 1978. Non-application of mind of the District Magistrate is apparent from the perusal of the grounds of detention, in that, he has omitted to refer, still less consider, the factum of detenues being already in custody at the time he was approached for considering his detention under Section 8 of the Act. This non-application of mind of the District Magistrate invalidates the order of detention. 6. Another ground which renders the order of detention invalid is that the detention order is based on the records provided by Superintendent of Police, Ganderbal, to the District Magistrate, Srinagar. This record, complains the petitioner, and rightly so, has not been supplied to the detenue. The copies of two F.I.R.s relied upon by the District Magistrate, as it so appears from the records, do not appear to have been supplied to the detenue. Non-supply of the copies of the F.I.R.s and the records of SP Ganderbal, relied upon by the District Magistrate, while directing the detention of the petitioner, violates Article 22(5) of the Constitution of India, disabling the Petitioner to make an effective representation against his detention. 7. I do not find any substance in the submission of Sh. Non-supply of the copies of the F.I.R.s and the records of SP Ganderbal, relied upon by the District Magistrate, while directing the detention of the petitioner, violates Article 22(5) of the Constitution of India, disabling the Petitioner to make an effective representation against his detention. 7. I do not find any substance in the submission of Sh. Wani that non-supply of copies of the F.I.R.s and material relied upon by the Superintendent of Police, Ganderbal, would not cause any prejudice to the detenue and that reference to the F.I.R.s was only a passing reference by the District Magistrate in the grounds of detention. What type of records had been supplied by the SP Ganderbal to the District Magistrate is not borne out from the grounds of detention. The detenue has, thus, been prejudiced in knowing about the nature of the records on the basis whereof a representation in defence to detention could have been made by the detenue. 8. For all what has been said above, I find that the detention of the petitioner is in violation of Article 22(5) of the Constitution of India and Sections 8/13 of the J&K Public Safety Act, 1978. Order No.DMS/PSA/118/05 dated 17.03.2006 issued by District Magistrate, Srinagar, for the detention of petitioner, Shabir Ahmad Mir, is hereby quashed. 9. Shabir Ahmad Mir, S/O Ghulam Mohammad Mir, R/O Kachnambal Kangan, is, accordingly, ordered to be released from custody forthwith, if not required for the infraction of any penal law/s. 10. The detention records be handed over to Sh. M. A. Wani, Dy. AG.