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2006 DIGILAW 189 (JK)

Ab. Rashid Reshi v. State Of J. &K.

2006-07-31

J.P.SINGH

body2006
1. Abdul Rashid Reshi questions his detention, ordered vide District Magistrate Baramullas Order No. 106 of 2001 dated 26.09.2001 on the following grounds:- "You are an upper ground militant of outlawed organisation Hizbul Mujahideen having its base camp heardquartered at POK. The aim and object of the organisation is to secede the State of J&K from Union of India and merge it with Pakistan. Your organisation is motivating local youths to receive training in handling and using of weapons across the border. Your organisation also motivates the local people to provide food and shelter to the militants as also raising funds for feeding the militants. Your organisation indulges in armed attacks on the security forces and Police personnel deployed to combat terrorism. Your organisation is also indulging in killing of innocent persons and the persons who are affiliated with pro-Govt. political parties and the persons who assist the security forces in combat operations against the militants. To achieve this end, you started working as guide, harbourer and courier for the militant outfit Hizbul Mujahideen. You also provided food and shelter to the militants of your organisation and provided them information about the movements of the security forces and vital installations. You used your 1 house as meeting place for the militants and dumping of weapons. You receive some AK rifles and two pockets from the militants of Hizbul Mujahideen namely Bawa and Iqbal and in turn handed over the same to one Qular Bhat S/O Gh. kasool Bhat an active militant of Hizbul Mujahideen outfit. In the month of December 1999 a deal with regard to arms and ammunition took place in your house between the top ranking commander of Hizbul Mujahideen Zabi R/0 Soibugh District Commander of Hizbul Mujahideen outfit for District Budgam who is also launching commander of Tangmarg area. Iqbal and other militants of Hizbul Mujahideen outfit operating in Srinagar and thereafter a large quantity of arms/ammunition was transported from Khunchipora to Srinagar in a Maruti Car. On 6.5.2001 on a specific information BSF 194 BN and SOG Waripora Tangmarg raided your house and during search One Chinees Pistol, Ammunition 4 rounds and one magazine was recovered. Case FIR No.39/2001 u/s 7/25 IAA stand registered at Police Station Tangmarg. In which you were enlarge on bail and the charge sheet produced in the Court of law. On 6.5.2001 on a specific information BSF 194 BN and SOG Waripora Tangmarg raided your house and during search One Chinees Pistol, Ammunition 4 rounds and one magazine was recovered. Case FIR No.39/2001 u/s 7/25 IAA stand registered at Police Station Tangmarg. In which you were enlarge on bail and the charge sheet produced in the Court of law. On 30.8.2001 acting on a specific information 15 JAK rif conducted search of your house and 2 PPG Rockets, 5 Grenades, 2 hand grenades, 1 TNT Slab, 2 1ED Timer Switches and 2 fuses were recovered from your possession. At present, you are under arrest in case FIR No: 65/2001 u/s 7/25 IAA of Police Station Tangmarg. From what has been stated above, it is clear that you are upper ground militant of Hizbul Mujahideen outfit. Your remaining at large is highly prejudicial to the security of the State. Therefore, you are ordered to be detained under the provisions of J&K Public Safety Act, 1978." 2. Sh. G. N. Shaheen, learned counsel for the petitioner, submits that the order impugned in the writ petition exhibits non-application of mind by the District Magistrate, Baramulla, in directing the detention of the petitioner, which according to the learned counsel, was based on grounds and facts which run contrary to the judicial records. Sh. Shaheen submits that the petitioner had been shown to be under arrest in case F.I.R. No.65/2001 registered under Section 7/25 Arms Act at Police Station, Tangmarg, whereas the fact of the matter, as certified by the judicial records, was that the petitioner was moving as a free man pursuant to his release on bail by learned Sessions Judge, Baramulla, and had been attending trial in the cases pending before the learned Sessions Judge, Learned counsel relics on certified copies of various orders passed by learned Sessions Judge, Baramulla, which form annexures P-l to P-22 to the petition. 3. According to Sh. G. N. Shaheen, the petitioner was detained for a period of six months in terms of the impugned detention order. This order has lost its legal validity and cannot be executed after a period of about five years from the date of its issuance. 3. According to Sh. G. N. Shaheen, the petitioner was detained for a period of six months in terms of the impugned detention order. This order has lost its legal validity and cannot be executed after a period of about five years from the date of its issuance. Learned counsel submits that petitioner had been continuously attending his trial before learned Sessions Judge, Baramulla, and during this period of trial, no subversive or other activities prejudicial to the security of the State had been attributed to him by the respondents, who had opted not to detain the petitioner. According to learned counsel, the petitioner cannot be detained at this stage in execution of order issued in 2001. 4. Sh. M. A. Wani, learned State counsel, raises a preliminary objection as to the maintainability of the present petition without petitioners first surrendering to custody. He submits that the petitioner had been avoiding execution of the detention order and in that view of the matter; he cannot take advantage of this. 5. The respondents, despite several opportunities, having been granted to them, since their appearance in this Court in 2005, have neither filed the reply to the writ petition nor have they opted to produce the detention records. 6. 1 have considered the submissions of learned counsel for the parties and gone through the documents placed on records by the petitioner. 7. Detention cannot be questioned by a detenue without his first surrendering to custody, is a position in law, which is well established. This legal position, however, may not be applicable in those rare cases where the continuance of detention may amount to flagrant violation of the Constitution and the order of detention was unconscionable, demonstrating errors apparent on the face of records. I will, therefore, like to examine as to whether or not the present case is one of those rare cases where extra ordinary writ jurisdiction of the Court needs to be exercised. 8. Detention order dated 26.09.2001 directs the detention of the petitioner for a period of six months. This period has since elapsed. During this six months period, the petitioner had been appearing before learned Sessions Judge, Baramulla, in files Nos.48/Sessions and 152-A/Sessions, where his presence is recorded on 23.10.2001 and 15.02.2002. Oven after the period of six months, the petitioner is shown to have been appearing before learned Sessions Judge in these two cases upto 11.08.2005. This period has since elapsed. During this six months period, the petitioner had been appearing before learned Sessions Judge, Baramulla, in files Nos.48/Sessions and 152-A/Sessions, where his presence is recorded on 23.10.2001 and 15.02.2002. Oven after the period of six months, the petitioner is shown to have been appearing before learned Sessions Judge in these two cases upto 11.08.2005. Respondents have not taken any steps to execute the impugned detention order. In these circumstances would be a travesty of justice and stark violation of the constitutional right of life and personal liberty, if a detention order of 2001 was to be permitted to be executed after the expiry of the period of detention and after a period of about five years of its issuance. 9. I, therefore, consider the present case to be held one of those rare cases where exercise of jurisdiction under Section 103 of the Constitution of Jammu & Kashmir is warranted. Maximum period of detention under the J&K Public Safety Act, 1978, is two years. This period too has since expired. 10. In view of the aforesaid discussion, I am of the opinion that the petitioner cannot be detained in preventive custody on the basis of state allegations of 2001, in 2006. Detention Order No. 106 of 2001 dated 26.09.2001 issued by the District Magistrate, Baramulla, for the detention of the petitioner is, hereby quashed.