Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 47 (JK)

Ab. Aziz Dar v. State

2010-02-09

MOHAMMAD YAQOOB MIR

body2010
1. Allegedly activities of the detenu Abdul Aziz Dar are such that his being at large is a constant threat to the security of the State. For deterring the detenu from committing such alleged activities, initially has been arrested in the year 1992, remained in preventive custody till 2000. On release he is alleged to have formed a party named as Tehreek-i-Kashmir with Pro-Pak agenda and after some break said party merged with Tehreek-i-Hurriyat Kashmir. 2. The detenu is alleged to be the prominent self styled leader of Hurriyat Conference and is believed to be one of the think tanks of the Hurriyat. He is also allegedly inciting the youth to have resort to violence and is propagating the secessionist ideology by sponsoring strikes, enforcing closure of business establishments by launching false media propaganda. He is also alleged to have been assigned the job of motivating released militants so as to do anti-national activities. In connection thereof has been again taken into preventive custody under the provisions of Public Safety Act in the year 2004 and released in the year 2006. 3. On release the detenu was found to have again indulged into similar secessionist activities and is alleged to be in close contact with the cadres of HM outfit. The detenu is also alleged to have succeeded in recycling number of released militants, so, was again detained under the provisions of Public Safety Act in the year 2006 but released in 2007. 4. From the year 2007 the detenu has remained at large but is alleged to have continued the activities such as playing a more proactive role in secessionist politics and indulging in highly objectionable activities. While implementing the strategy is alleged to have been on fore-front. 5. On 16.10.2009, a case FIR No.87/2009 was registered against the detenu in Police Station Mahraj Gunj and was again arrested on 24.10.2009 alongwith his other associates for commission of offences punishable under Sections 148, 336, 152, 153-A, 120-B RPC. While in custody detention order impugned has been passed on 29.10.2009 and in connection with the said detention order has been taken into custody and lodged in District Jail Udhampur. Aggrieved thereof, the instant petition has been filed. 6. While in custody detention order impugned has been passed on 29.10.2009 and in connection with the said detention order has been taken into custody and lodged in District Jail Udhampur. Aggrieved thereof, the instant petition has been filed. 6. The first contention on behalf of the detenu is that he has not been supplied the material forming the basis of the grounds of detention, furthermore the allegations in the grounds of detention are vague. 7. Non-supply of the said material and vagueness of the allegations has disabled the detenu from making effective representation to the Government, therefore, order of detention is bad. In support of this contention, reliance has been placed on the judgment Tahira Haris Etc. Etc. v. Government of Karnataka & Ors. (AIR 2009 SC 2184). It shall be quite apt to quote para 28 and 29 of the said judgment:- "28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. 29. On proper construction of clause (5) of Article 22 read with section 3(3) of COFEPOSA Act. It is imperative for valid continuance of detention that the detenu must be supplied all documents, statements and other material relied upon in the grounds of detention. In the instant case, admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenu and the detenu was prevented from making effective representation which has violated his constitutional right under clause (5) of Article 22 of the Constitution." 8. While considering this contention, learned counsel for the respondents was specifically asked to show if there is any such material available on the detention record which formed base of the grounds of detention but the detention record available with him unabled him to oppose the contention. 9. In the grounds of detention activities attributed to the detenu from the year 1990 have been made mention of. Finally impugned order of detention has been based on the allegations contained in the last para of the grounds of detention, which are reproduced here-under:- "You misused your liberty and instead of leading a normal life, recycled into secessionist activities. 9. In the grounds of detention activities attributed to the detenu from the year 1990 have been made mention of. Finally impugned order of detention has been based on the allegations contained in the last para of the grounds of detention, which are reproduced here-under:- "You misused your liberty and instead of leading a normal life, recycled into secessionist activities. In the year 2007 you have been playing a more proactive role in secessionist politics and indulging in highly objectionable activities. During the last two years you have been at the forefront of devising the secessionist strategies, hatching conspiracies to disrupt the public order and committing offences punishable under various provisions of law. During the last two years the secessionists have devised a new strategy to vitiate the public tranquility in order to propagate the secessionist ideology for achieving the objective of seceding the state of J&K from the Union of India. In implementing this strategy you have been at the forefront of all the illegal activities which are aimed at achieving this objective. In the recent past you have acted as incharge chairman of Hurriyat (G) during the detention of its former Chairman. During this period you indulged in highly objectionable activities. On 16-10-2009 you along with your other associates appeared at Zainakadal Chowk and indulged in such activities. In this regard case FIR No.87/2009 was registered in Police Station MR-Gunj U/S 148, 336, 152, 153-A, 120-B RPC and you were arrested in the said case on 24-10-2009. You are presently lodged in Police Station MR-Gunj under proper police remand." 10. The detention record maintained by the detaining authority does not contain any material where from it could be gathered or which could indicate or which would support the aforesaid allegations. From the year 2007 till 16.10.2009, the detenu has allegedly indulged in activities and was hatching conspiracy to disrupt the law and order in the State. If it was so, then why action has not been taken during the said period against the detenu. In-action thereof means that such allegations are without basis. That apart, if these activities as alleged are taken to be correct then the material forming basis should have been available in the detention records as produced for perusal. When the material is not available on the records of detaining authority, then what to speak of supply of such material to the detenu. That apart, if these activities as alleged are taken to be correct then the material forming basis should have been available in the detention records as produced for perusal. When the material is not available on the records of detaining authority, then what to speak of supply of such material to the detenu. The detenu has been disabled from making an effective representation so as to project his innocence against the order of detention. 11. Non-supply of the material forming basis of the grounds of detention is a serious infringement of guaranteed constitutional right as enshrined by Article 22 of the Constitution. 12. In the above referred judgment AIR 2009 SC 2184 the Honble Apex Court has quashed the order of detention only on the ground that the grounds of detention and the copies of the document, statements and other materials relied upon in the grounds of detention were not supplied to the detenu. 13. While applying the law as has been laid down in the referred judgment as quoted hereinabove, there is no option but to hold that the order of detention is invalid. 14. In view of the determination of the aforesaid contention, other contentions raised are not required to be dealt with. The order of detention impugned bearing No. DMS/PSA/51/2009 dated 29.10.2009 passed by District Magistrate, Srinagar, is quashed. Detenu namely Abdul Aziz Dar S/o Mohammad Sidiq Dar R/o Kalaiander Mohalla, Srinagar, is ordered to be released forthwith provided he is not required in connection with any other case. Petition accordingly succeeds. 15. Detention record as produced by learned counsel for respondents be returned to him.