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2006 DIGILAW 313 (JK)

Mohd. Hussain v. State Of J. &K.

2006-12-22

J.P.SINGH

body2006
1. District Magistrate, Udhampur has ordered the detention of petitioner, Mohd. Hussain for a period of two years in Kot Balwal Jail, Jammu vide his Order No. PSA-2006/8 dated 14-09-2006 on the grounds which read thus: "Grounds of detention in respect of Mohd Hussain S/o Fazal Din R/o Lodhara, Basantgarh Tehsil Ramnagar District Udhampur. Whereas, Mohd.Hussain S/o Fazal Din R/o Lodhara, Basantgarh Tehsil Ramnagar District Udhampur being a hardcore upper ground activist of HM terrorist outfit, remained close associate of Bn.Commander of HM outfit namely Gul Mohd. Code Amjad Ansary and Zubair code Nadeem and other militants of HM outfit. He was involved in the terrorist activities and helped the terrorists of the said outfit for spreading terror in Ramnagar, Basantgarh and its adjoining areas with a view to liberate and see succession of the State of J&K from the Union of India. The terrorist of the banned militant organization are indulging in subversive and disruptive activities against the state by inculcating separatist feelings and creating disturbances, panic, scare, alarm and terror amongst the peace loving people of the state. Whereas, the said Mohd Hussain being an active upper ground worker of the HM militant outfit and acted as a courier as well as guide and informer regarding movement and presence of security forces and is involved in providing food and shelter to the militants. Whereas, a dreaded militant Gul Mohd Khan @ Gulla Code Amjad who was earlier operating in Poonch area came to Basantgarh area during the year, 2001 and started subversive activates, Gul Mohd @ Gulla along with his other dreaded associates of HM outfit namely Zubair code Nadeen and code Shiraj used to vist his residence and he was harbouring them and providing them food, shelter and other logistic support. Whereas, the said Mohd.Hussain used to visit Udhampur to meet Mohd Irfan terrorist of HM outfit (since arrested), Mohd.Shafiq Wani @ Javed and one Zubair code Nadeem R/o Doda a commander of HM outfit (since killed). After meeting with these terrorists had come to know that Mohd. Shafiq @ Javed had lobbed the grenade at MH crossing Udhampur with an intention to kill the Police party in a vehicle parked there and to terrorize the people in which one Dy.S.P.S.D.Choudhary and other police personnel were travelling. After meeting with these terrorists had come to know that Mohd. Shafiq @ Javed had lobbed the grenade at MH crossing Udhampur with an intention to kill the Police party in a vehicle parked there and to terrorize the people in which one Dy.S.P.S.D.Choudhary and other police personnel were travelling. Whereas, the dreaded militant Gul Mohd @ Gulla along-with his other associates frequently used to visit in his residence for food and shelter which fact he never disclosed to the security forces. Whereas, the said Mohd.Hussain accompanied the wife of Gul Mohd @ Gulla namely Kastoor to Chandigarh during the month of October, 2004 thereafter he went to Agra and brought Gul Mohd @ Gulla safely back to Chandigarh who was gone for treatment in Private Hospital to remove the stone from his kidney. Whereas, on 20-11-2004, Gul Mohd @ Gulla, HM Commander handed over one Tiffin containing one binocular, diary and 37 photographs of militants of HM outfit operating in Doda, Udhampur and Kathua area for keeping the same in the safe custody and he kept the said Tiffin in a pit dug near his house. Whereas, on 21-11-2004, Gul Mohd @ Gulla surrendered before worthy IGP, JZ, Jammu and handed over one AK rifle, two loaded magazines, one wireless set and one hand grenade to the police. The said Mohd Hussain and one surrender militant namely Gul Mohd @ Gulla were shifted to Police Station Udhampur where he came to know about the fact that Gul Mohd. had given one wireless set to Altaf Hussain Wani W/o Mohd. Yousuf (a shopkeeper) R/o Kadwah Basantgarh for providing ration items and master Ab. Rashid Khan S[o Feroz Din R/o Goundi (Rai-Chak) for providing information about the involvement of security forces/police in the area. Whereas, FIR No:2/2005 U/S 120/121/122/124/A RPC 18/19/20 PUA Act 7/25/26/27 Arms Act at Police Station Basantgarh has been registered against him. On his instance, a Tiffin containing one binocular, diary and 37 photographs of militants of HM outfit operating in Doda, Udhampur and Kathua area were recovered from him. Whereas, in view of the above, I am satisfied that the activities of Sh. Mohd.Hussain S/o Fazan Din R/o Lodhara, Basantgarh Tehsil Ramnagar District Udhampur are highly prejudicial to the security of State. His activities are anti-national, subversive and prejudicial to the security of the state. Whereas, in view of the above, I am satisfied that the activities of Sh. Mohd.Hussain S/o Fazan Din R/o Lodhara, Basantgarh Tehsil Ramnagar District Udhampur are highly prejudicial to the security of State. His activities are anti-national, subversive and prejudicial to the security of the state. Thus can having me to believe that your further remaining at large will be highly dangerous to the lives of the innocent people in general and highly prejudicial at the security of the state in particular. Therefore, you are detained in the Kot Balwal Jail, Jammu for a period of two years under the provisions of Public Safety Act, 1978." 2. The grounds of detention do not indicate either the material or the source on the basis whereof, the District Magistrate had drawn these grounds. Supplying of copies of grounds of detention to the detenue minus the material or information about the source on the basis whereof these grounds had been drawn, would not, in my opinion, satisfy the requirements of Article 22(5) of Constitution of India. Mere supplying of the grounds of detention would not, thus, in the circumstances furnish requisite material to the petitioner to exercise his right guaranteed by the Constitution to make an effective representation against his detention. 3. The detaining authority is required to spell out the material or source of information relied upon by it to draw the grounds of detention, unless, however, it in exercise of powers under section 13(2) of the Jammu and Kashmir Public Safety Act, elects not to disclose the grounds of detention or source of information to the detenue, in public interest. 4. The detaining authority has not exercised his powers under section 13(2) of the Jammu and Kashmir Public Safety Act, 1978 to dispense with the requirement of serving the grounds of detention in public interest, in the present case, And that being the case the detention of the petitioner become unsustainable because omission of the District Magistrate to spell out the material or source of information on the basis whereof he had drawn the ground of detention deprives the petitioner of his right for making an effective representation against his detention thereby violating section 13 of Jammu and Kashmir Public Safety Act and Article 22(5) of the Constitution of India. 5. 5. Projecting his grievance against his illegal detention by District Magistrate, Udhampur, the petitioner says that he had been working for the department of Crime and Railways on counter intelligence issues thereby helping the police in combating militancy, yet he had been detained by District Magistrate, Udhampur, for no good reasons. He has annexed a certificate issued by Superintendent of Police, Crime and Railways dated 27th November, 2004 in support of this plea. Various other pleas questioning his detention, raised in the petition, have remained un-rebutted as the respondents, despite opportunities having been granted to them have opted not to file any counter affidavit to this petition. 6. I find force in the submission of learned counsel for the petitioner when he says that the District Magistrate had passed the detention order without there being any material on records to support the grounds of detention because the records which have been provided to the court by the learned State counsel, do not contain any material or for that matter the police dossier or police reports wherefrom it may be inferred that the detenue was likely to indulge in activities prejudicial to the security of State. The order passed by the District Magistrate, thus, exhibits non-application of mind. The power exercised by Learned District Magistrate cannot, thus, be justified, for, "satisfaction" contemplated by section 8 of Public Safety Act can be recorded only on the basis of some or the other material produced before such authority. In the absence of any material on records, the detaining authority, cannot exercise power under section 8 of J&K Public Safety Act to curtail the liberty to a person. 7. For all what has been said above, I find the detention of the petitioner to be illegal and unconstitutional being in violation of Section 8 & 13 of J&K Public Safety Act and Article 22(5) of Constitution of India. 8. Allowing this petition, Order No. PSA-2006/8 dated 14-09-06 of District Magistrate, Udhampur is, accordingly, quashed. Petitioner is ordered to be set to liberty forthwith, if not required in any other case for infraction of penal laws in force in the State. Detention records shall be returned to the State counsel.