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2006 DIGILAW 269 (JK)

Peer Asif Iqbal Shah v. State

2006-11-10

J.P.SINGH

body2006
1. Peer Asif Iqbal Shah alias Jana has questioned order No. Det/PSA/06/294 dated 10.06.2006 of District Magistrate, Baramulla, whereby he was detained in preventive custody for the second time when his earlier detention was quashed by the Court in HCP No. 126/2005 on 7.2.2006. 2. District Magistrate, Baramulla detained the petitioner in preventive custody on grounds which read thus:- "You namely Sh. Peer Asif Iqbal Shah @ Jana S/o Peer Gayas-ud-din Shah R/o Khawajabagh District Baramulla were apprehended on 11.03.2005 in case of FIR No. 06/05 u/s 3 OSA O.3 SOSA, 120-B RPC, 03 EGA, P/SCIK and subsequently detained under the provisions of J&K PSA vide DM Baramullas order No. 209 of 2005 dated 17.3.2005, which order was subsequently quashed by the Honble High Court of J&K Srinagar. After quashment of detention order you are again arrested in case FIR No. 06/2005, u/s 03 OSA, 03 SOSA, 120-B RPC, 03 EOA, P/S CIK and are presently lodged in judicial custody at Central Jail Srinagar. You namely Sh. Peer Asif Iqbal Shah @ Jana S/o Peer Gayas-ud-din Shah R/o Khawajabagh District Baramulla you instigates and briefs the associate of HM out fit, other under trails, friends and relatives who used to visit you on MULAQAT DAYS to convey your messages to high ranking militants and UG Ws of your militant outfit, not to shun the path of militancy, continue the armed struggle in order to carry out the so called JEHAD to its logical end. You namely Sh. Peer Asif Iqbal Shah @ Jana S/o Peer Gayas-ud-din Shah R/o Khawajabagh District Baramulla are engaged in seeking secession of the State of J&K from the Union of India by creating chaotic conditions in the valley. You are highly motivated fanatic Muslim and have been found indulging in pro-islamic propaganda by preaching the ideologies of your out fit by way of giving sermons to the detenues lodged in central jail Srinagar to be ready for any sacrifice for merger of J&K State with Pakistan. You carried out your nefarious activities in such a manner that it could not be detected by the Jail inmates, as such your activities are prejudicial to the security of the State. It is manifest from the above facts that your activities are highly prejudicial to the security of the State. You carried out your nefarious activities in such a manner that it could not be detected by the Jail inmates, as such your activities are prejudicial to the security of the State. It is manifest from the above facts that your activities are highly prejudicial to the security of the State. Hence you are hereby detained under the provisions of J&K Public Safety Act, 1978, and you have a right of representation against the said order." 3. Perusal of the grounds of detention extracted hereinabove indicates that the petitioner was found to have instigated and briefed the associates of HM militant outfit, other under trails, friends and relatives, who used to visit him on `Mulaqat days to convey his messages to high ranking militants and underground workers of his militant outfit not to shun the path of militancy and to continue the armed struggle in order to carry out the so called `Jihad to its logical end. 4. This ground of detention, is vague be sides being ambiguous to furnish such material to the detenue on the basis whereof an effective representation in exercise of his constitutional right under Article 22(5) of the Constitution of India could be contemplated. 5. The ground on which the petitioner has been detained in preventive custody does not indicate the name(s) of the associates of HM outfit as also the day(s), month(s) or for that matter the year when such `mulaqats had taken place, where the petitioner was stated to have instigated the under trials, friends and other relatives. 6. Non-furnishing of a detailed statement as to the above-referred aspect of the allegations deprives the detenue of his right to make an effective representation against his detention on the basis of vague and ambiguous material. 7. That apart, the petitioner was in custody in FIR No. 06/2005 when the impugned detention order was issued. 8. In all such cases, where the detention order was contemplated in respect of a person who was already in custody, the detaining authority is required to satisfy itself that despite being in custody the person was likely to indulge in activities prejudicial to the security of the State or maintenance of public order or in the event of his release from custody, he was likely to indulge in such activities. No such satisfaction was recorded by District Magistrate, Baramulla in directing the detention of the petitioner who was already in custody for the second time and in that view of the matter the power exercised by him under, Section 8 of the J&K Public Safety Act, 1978, becomes unsustainable. 9. Perusal of order No. Det/PSA/06/294 dated 10.06.2006 indicates that the District Magistrate, Baramulla had recorded his satisfaction on the basis of dossier and other connecting documents in respect of Peer Asif Iqbal Shah. Neither the dossier nor these connecting documents, which were relied upon by the District Magistrate were supplied to the detenue, thereby depriving him. of his right to go through these documents before making an effective representation against his detention. I therefore, find force in the submissions of Mr. B. A. Tak, learned counsel for the petitioner, when he says that the material relied upon by the detaining authority had not been supplied to the detenue, thereby depriving him of his right to make an effective representation against his detention. 10. Learned State counsel, had nothing much to say to oppose the submissions of the learned counsel for the petitioner because the records produced by him did not contain any such material on the basis whereof the plea raised on behalf of the petitioner could be met. 11. For all what has been said above, 1 do nut find any material or ground in the records furnished by Shri J. I. Ganai learned State counsel, to justify the detention of the petitioner. 12. This petition is accordingly allowed and order No. Det/PSA/06/294 dated 10.06.2006 of District Magistrate, Baramulla, is quashed. A direction is accordingly issued to the respondents to release the petitioner forthwith preventive custody, if not required for infraction of penal provisions of any law in force in the State.