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2020 DIGILAW 512 (JK)

Ishfaq Ahmad Lone v. State

2020-09-30

SANJEEV KUMAR

body2020
JUDGMENT The petitioner [‘detenu’] is aggrieved and has challenged the order No. 06/DMK/PSA/2019 dated 06.02.2019 [‘impugned order’] issued by the District Magistrate, Kulgam (hereinafter referred to as the ‘Detaining Authority’) whereby the Detaining Authority, in exercise of powers conferred by clause (a) of Section 8 of J&K Public Safety Act, 1978,(hereinafter referred to as the ‘Act’) has detained the petitioner and lodged him in the Central Jail, Kotbhalwal, Jammu. 2. The impugned order has been assailed on various grounds enumerated in the body of the petition. 3. Before I advert to the grounds of challenge, which were specifically pressed before him by learned counsel for the petitioner, it would be necessary to note down few relevant facts. Pursuant to the dossier submitted by the Senior Superintendent of Police, Kulgam vide his letter No. Legál/PSA/03/2019/331-34 dated24/01/2019 giving details of activities of the petitioner, the Detaining Authority issued the impugned order. As per the grounds of detention served upon the petitioner and the dossier supplied by Sr. Superintendent of Police, Kulgam, the gist of allegations against the petitioner is that the petitioner, who has studied up-to 12thclass from Higher Secondary School, Qaimoh is a crockery vendor. He is claimed to have developed close association with active militants of the area. It is the further allegation against the petitioner that after developing links with the anti-social and anti-national elements, the petitioner started to work as Over Ground Worker [OGW] for the banned Hizbul Mujahideen outfit and had been facilitating them by way of providing food and shelter. It is claimed that he played a key role in helping the terrorists for transportation of arms and ammunition. It is also claimed that the petitioner was in communication with the militants through BBM application installed on a smart phone provided to him by an active terrorist namely Owvais Ahmad @ Raja. The incident of snatching of four SLRs from the Police Guard at Anantnag is also attributed to the petitioner. He is also stated to have been found involved in an attack carried on the house of Ex-MLA at Horneshalibugh with an intention to kill him. The dossier further reveals that, for his involvement in the criminal activities, the Police Station, Qaimoh, has registered a FIR No. 37/2018 u/ss 13, 16, 18, 19, 38, 39 and ULA (P) Act. He is also stated to have been found involved in an attack carried on the house of Ex-MLA at Horneshalibugh with an intention to kill him. The dossier further reveals that, for his involvement in the criminal activities, the Police Station, Qaimoh, has registered a FIR No. 37/2018 u/ss 13, 16, 18, 19, 38, 39 and ULA (P) Act. The contents of the said FIR reveal that on 10.07.2018, some terrorists with the help of OGWs planned to attack Police/Security forces within the jurisdiction of Police Station, Qaimoh with the intention to snatch weapons from them and the petitioner had been assigned the task to obtain ammunition from different sources and provide the same to the said terrorists. The dossier further reveals that during the course of investigation in the aforesaid FIR, the involvement of the petitioner was established. 4. It is in view of these activities noted in the dossier, District Magistrate, Kulgam arrived at the satisfaction that the activities, the petitioner was found indulging in were highly prejudicial to the security, sovereignty and integrity of the State and, therefore, to deter him from indulging in such activities, it was necessary to put the petitioner under preventive detention by having resort to the provisions of the Act. 5. From the perusal of record produced by Mr. Naqashbandi, learned AAG, it transpires that the impugned order issued on 06.02.2019 was executed on 17.02.2019. The petitioner was served with the grounds of detention and was duly informed that he had a right to make representation to the Government, if he so desired. The matter was placed before the Advisory Board and on receipt of opinion from the said Board that it was a fit case to continue the detention of the petitioner, the same was confirmed vide order dated 08.03.2019 for a period of six months in the first instance. The detention of the petitioner has been extended from time to time by issuing different Government orders. 6. It has further come out from the record that, vide Government Order No. Home/PB-V/500 of 2019 dated 05.04.2019, the petitioner has been shifted from the Central Jail, Kot Bhalwal, Jammu to District Jail, Karnal, Haryana, where he is presently lodged. The detention of the petitioner has been extended from time to time by issuing different Government orders. 6. It has further come out from the record that, vide Government Order No. Home/PB-V/500 of 2019 dated 05.04.2019, the petitioner has been shifted from the Central Jail, Kot Bhalwal, Jammu to District Jail, Karnal, Haryana, where he is presently lodged. The execution report signed by one ASI, Nazir Ahmed further reveals that with the execution of the detention order, the petitioner was also served with the grounds of detention which were read over to him in English and also explained to him in Kashmiri language which he understood fully and in acknowledgement whereof, he put his signatures on the execution report. The petitioner was supplied with the detention order, notice of detention, grounds of detention, copy of the dossier and copy of FIR aforesaid against proper receipt. 7. It further comes out from the execution report that the petitioner was also informed that he can make representation to the Government as well as to the Detaining Authority against his detention if he so desired. The receipt executed by the petitioner in token of having received all the aforesaid material is also on the record. 8. As noted above, the impugned order has been assailed by the petitioner on numerous grounds, but the learned counsel appearing for the petitioner laid emphasis only on the following grounds: (i) That there is no independent application of mind by the Detaining Authority and the impugned order has been passed on mere asking of and on the basis of dossier supplied by the SSP, Kulgam. (ii) That non-application of mind by the Detaining Authority is writ large, in that, the Detaining Authority has not shown its awareness, whether the petitioner, at the time of passing of the impugned order, was in the custody of the State in connection with the FIR registered against him or not. The Detaining Authority has also not indicated any compelling reasons to put the petitioner under preventive detention when he was booked under stringent law i.e, Unlawful Activities (Prevention) Act, 1967 (‘Act of 1967’ for short)where there are remote chances of getting bail. (iii) That the petitioner was not supplied with the material relied upon in the grounds of detention viz., order of detention, dossier, copy of FIR etc. and this has incapacitated him to file an effective representation. 9. (iii) That the petitioner was not supplied with the material relied upon in the grounds of detention viz., order of detention, dossier, copy of FIR etc. and this has incapacitated him to file an effective representation. 9. The respondents have filed their counter affidavit and have also made available the relevant detention record through digital mode to substantiate their assertion that all the legal procedures as envisaged under the Act have been followed. 10. Reference was invited by Mr. Naqashbandi, learned AAG to the receipt executed by the petitioner whereby he has acknowledged all the material relied upon in the grounds of detention. It is urged that the Detaining Authority derived subjective satisfaction on the material supplied by the police and came to an independent view that the activities, the petitioner had been consistently indulged in, were highly prejudicial to the security of the State and the only way to prevent him from indulging in such activities and threatening the security of the State was to put him under preventive detention. 11. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned order is not sustainable and deserves to be quashed on the solitary ground of total non-application of mind by the Detaining Authority. 12. From the perusal of grounds of detention, it clearly reveals that, for the activities indulged in by the petitioner over a period of time, he was booked in aforesaid FIR registered for the offences under the Act of 1967. The grounds of detention nowhere indicate regarding the awareness of the Detaining Authority as to whether the petitioner was arrested in aforesaid FIR and was in custody or not. However, the dossier supplied by the police reveals that the police had the apprehension that in the aforesaid FIR registered against the petitioner, he would succeed in getting the bail and, therefore, to prevent him from indulging in the activities prejudicial to the security of the State, it was necessary to detain him. Even the dossier does not specifically indicate as to whether the petitioner had been arrested in the FIR aforesaid; whether or not, the petitioner had actually applied for bail or not and if applied, what was the order passed by the competent Court of jurisdiction. Even the dossier does not specifically indicate as to whether the petitioner had been arrested in the FIR aforesaid; whether or not, the petitioner had actually applied for bail or not and if applied, what was the order passed by the competent Court of jurisdiction. Other than mentioning that the investigation after completion has been sent to the Government for sanction, nothing more is clearly stated. 13. The Detaining Authority has not even gone to this extent and has shown complete ignorance with regard to the whereabouts of the petitioner sought to be detained. It only refers to the FIR registered against the petitioner and the activities indulged in by him. Without even knowing, whether the petitioner is already in custody and whether, he is likely to get bail or not, the Detaining Authority has mechanically passed the impugned order and has detained the petitioner under Section 8(a) of the Act. 14. Though I do not find any substance in the submission of learned counsel for the petitioner that the petitioner was not supplied with the material relied upon in the grounds of detention as the record produced before me clearly reveals otherwise, yet, in view of the aforesaid conclusion, derived by me from the perusal of the record, I find it a fit case for indulgence. 15. The conclusion is that the impugned order suffers from total non- application of mind by the Detaining Authority and is, thus, not sustainable in law. The preventive detention is not a substitute for regular trial and any resort to preventive detention has to be justified on the touchstone of law now well settled through umpteen judgments of the Apex Court and of this Court. An individual cannot be deprived of his life and personal liberty granted to him by Article 21 of the Constitution and if the circumstances warrant such curtailment of liberty, law providing for such curtailment has to be followed strictly. The failure of the Detaining Authority to show awareness with regard to the arrest of the petitioner in the aforesaid FIR and to indicate compelling reasons for having resort to preventive detention has rendered the impugned order illegal in the eye of law. 16. For the foregoing reasons, I find merit in this petition. Same is, accordingly, allowed. The impugned order is quashed. 16. For the foregoing reasons, I find merit in this petition. Same is, accordingly, allowed. The impugned order is quashed. Respondents are directed to release the petitioner forthwith, provided he is not required in any other case.