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2012 DIGILAW 97 (JK)

Shabir Ahmed v. State & Ors.

2012-03-08

J.P.SINGH

body2012
Shabir Ahmed son of Gh. Mohd. Malik was ordered to be detained under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 for a period to be determined by the Advisory Board of Jammu and Kashmir, to prevent him from acting in any manner prejudicial to the security of the State by District Magistrate, Doda vide his No.DM/DODA/PSA/2K XI/348-56 Dated 08.04.2011. Confirming the Detention Order, the Government of Jammu and Kashmir approved Shabir Ahmed s detention for a period of 24 months vide Government Order No.Home/PB-V/1357/2011 dated 17.06.2011. The detenu has approached this Court through his father seeking quashing of his detention and for an order to set him to liberty. I have heard learned counsel for the parties and perused the Detention Records produced by the learned Additional Advocate General appearing for the State of Jammu and Kashmir. The detenu s plea that he was in custody from July 2008 till 30th December, 2010 facing trial in the Court of Additional Sessions Judge Doda in case titled State v. Bashir Ahmed and others arising out of FIR No.88/2008 registered at Police Station, Doda under Sections 302/307 RPC and 3/4 ESA, which is otherwise supported by the Docket issued by the Court of Additional Sessions Judge, Doda on December 30, 2010 directing his release from custody in the case aforementioned, is not denied by the State-respondents in their Counter Affidavit filed in answer to the detenu s Habeas Corpus Petition. The plea of the detenu s learned counsel that the detenu was in custody for the period referred to herein above could not be controverted by the learned State counsel during the course of consideration of the Petition. In these circumstances, when the petitioner was in Police and Judicial custody for over a period of two years, his detention in Preventive Custody on the basis of his alleged militancy related activities on July 14, 2008, October, 2008, January 2009 and March, 2009 demonstrates ex facie arbitrary exercise of power by the Senior Superintendent of Police, Doda making the District Magistrate, Doda to believe that the detenu was involved in activities which may warrant his detention in Preventive Custody. This apart, having known that the detenu had surrendered to the Territorial Army and was in custody in FIR No.77/2009 registered at Police Station Doda under Sections 4/5 ESA, 6/7,25 Arms Act, 9-B Explosives Act and 10/11 Criminal Law Amendment Act, as is evident from the Grounds of Detention prepared by the District Magistrate, the District Magistrate could not have issued orders for petitioner s detention in Preventive Custody in the absence of any material made available to him that the detenu was likely to be released from custody and when so released would indulge in activities prejudicial to the security of State. Otherwise also, the detention ordered in April, 2011 on the basis of alleged activities, allegations in regard whereto are otherwise found not based on facts, may not be warranted, for, satisfaction of proposed detenu s likelihood of indulging in activities for which his detention in preventive custody may be warranted, may be drawn influenced by his activities in the recent past and apprehending their re-occurrence. Detention ordered in the year 2011 on the basis of stale incidents of 2008 and 2009 involvement of the petitioner wherein is even otherwise found not based on facts, is, therefore, unwarranted. The Detention Records demonstrate complete non-application of mind and misuse of authority and power by the Senior Superintendent of Police and the District Magistrate. For all what has been said above, District Magistrate Doda is found to have acted arbitrarily and without application of mind in issuing orders for Shabir Ahmed s detention. Detention Order No.DM/DODA/PSA/2KXI/348-56 dated 08.04.2011 issued by District Magistrate, Doda cannot, therefore, be sustained. This Petition, therefore, succeeds and is accordingly, allowed quashing District Magistrate, Doda s Order No.DM/DODA/PSA/2KXI/348-56 dated 08.04.2011. A direction shall, accordingly, issue to the Staterespondents to set the petitioner-Shabir Ahmed to liberty forthwith provided he was not required in any other case. Looking to the manner in which the Senior Superintendent of Police and District Magistrate Doda have misused their authority and acted arbitrarily in preparing Police Dossier and issuing the Detention Order alleging the petitioner to have involved in militancy related activities, when being already in custody he was disabled so to do, this Petition needs to be allowed with costs. This Petition is, accordingly, allowed with costs quantified at Rs.10,000/-. Detention Records be returned to the learned State Counsel.