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2023 DIGILAW 637 (JK)

Javid Iqbal Khan v. UT of J&K

2023-10-13

ATUL SREEDHARAN

body2023
JUDGMENT : The present petition has been filed by the petitioner, who is aggrieved by the order dated 19.05.2022 passed by the District Magistrate, Bandipora, in file of detention order bearing No. 16/DMB/PSA of 2022. By which the petitioner has been taken into preventive custody vide order dated 19.05.2022 which was executed on 21.05.2022. 2. Learned counsel for the petitioner has drawn attention of this Court to the grounds of the detention which briefly states that the petitioner is allegedly staunch follower and militant associate of banned terrorist organization Lashkar-e-Toiba and trouble monger involved in motivating and instigating the youth of Bandipora and its adjoining areas for anti-national activities and provoke the innocent population of the area for indulging in activities prejudicial to the overall security of the State. The ground of detention refers to him as an “admirer” of Laskher-e-Tobia Terrorist outfit, which is banned under the UAPA and that the petitioner is provoking the youth in the name of religion to join the militant ranks of banned outfit by misleading them. It further alleges that the petitioner has a “mental bent” towards insurgency and that he alongwith other anti-national elements are still continuing their nefarious activities as Over Ground Workers of the LeT. It further alleges that the petitioner is a person with a “fundamentalist ideology” and with the passage of time he became a “hardcore fundamentalist” providing logistic support to terrorists as Over Ground Worker for the LeT. 3. It alleges that the petitioner works on the directions of Chief Lala Umar and that he is having close association with the LeT terrorist Hashir Rafiq Parray & Jameel (eligible). He is also labeled as a potential threat to security and tranquility and that normal law of the land is not sufficient to deter the petitioner from carried out his nefarious activities. Thereafter, it list three FIRs in order to sustain the order of detention, as grounds for forming a subjective satisfaction in the mind of the detaining authority. 4. The paragraph that has been summarized hereinabove from the grounds of detention is absolutely vague, lacking in material particulars of place, time and specific action of the petitioner, and the allegations are broad based which would not give a reasonable opportunity to the petitioner to give a precise reply of denial. 5. 4. The paragraph that has been summarized hereinabove from the grounds of detention is absolutely vague, lacking in material particulars of place, time and specific action of the petitioner, and the allegations are broad based which would not give a reasonable opportunity to the petitioner to give a precise reply of denial. 5. The grounds of detention runs into three pages followed by the order of detention which is one page. Learned counsel for the petitioner has taken four grounds on the basis of which he has challenged the present detention they are: 1. The material on the basis of which the detention order was passed was not supplied entirety to the petitioner and, therefore, an effective representation could not be filed. 2. The grounds are vague which do not give reasonable opportunity to the petitioner to give a precise rebuttal. 3. The petitioner was in custody and same has not been adverted to by the State in their grounds of detention giving compelling circumstances as to why the petitioner should be detained under the provisions of the PSA while he languishes as under trial in judicial custody in FIR No. 67/2022, which is inter alia registered under Section 13 of the ULA(P) Act, Explosive Substance Act. Learned counsel for the petitioner further submits that the petitioner has not applied for bail in the said case and so obviously, bail has not been granted to the said case. As regards other two cases, learned counsel for the petitioner submits that they are stale being of the year 2016 and 2020 while detention order is of the year of 2022. He further submits that, if any, it is the last case which is of any relevance in the grounds of detention. 4. The fourth ground is the representation has not been decided. 6. Learned counsel for the Union Territory, on the other hand, submits that the petitioner is a person who poses a clear danger to the unity and integrity of nation on account of his association with militants and the kind of assistance that he has provided for them, as his evident in paragraph 2 of the grounds of detention. 6. Learned counsel for the Union Territory, on the other hand, submits that the petitioner is a person who poses a clear danger to the unity and integrity of nation on account of his association with militants and the kind of assistance that he has provided for them, as his evident in paragraph 2 of the grounds of detention. He has further stated that the dossier prepared by the police was placed before the detaining authority who has formed his subjective satisfaction on the basis of said dossier which provides material in addition what has been given in grounds of detention. Learned counsel for the UT has further submitted that alongwith dossier is the material in support of allegations in the dossier which has been considered by the detaining authority before the impugned order was passed. He further submits that the registration of the FIR has only been cited in the grounds of detention as a factor to buttress the case of the State relating to the previous antecedents of the petitioner and even if there were no FIR’s registered against the detenue, the subjective satisfaction of the detaining authority, formed on the basis of the material on record, can still sustain an order of detention as legitimate and valid. 7. The dossier was handed over to the Court and the Court, after having gone through the same, did not find any statement of witnesses either in Urdu or English, which has been extracted from the intelligence reports which would be material in support of the allegations against the petitioner warranting his detention under the PSA. The only documents in Urdu are the three FIRs relating to the petitioner of the year 2016, 2020 & 2022. There is no material in the form of the statement of any witness or any information specifically received from the intelligence agency which would support the allegations in the dossier. The allegations in the dossier also constitute the allegations in the grounds of detention. 8. As stated hereinabove, the allegations are vague. They are too broad based and do not give an opportunity to the petitioner to give specific answers in rebuttal. Learned counsel for the UT has also submitted that in the course of investigation three posters relating to the LeT were seized from the petitioner. 8. As stated hereinabove, the allegations are vague. They are too broad based and do not give an opportunity to the petitioner to give specific answers in rebuttal. Learned counsel for the UT has also submitted that in the course of investigation three posters relating to the LeT were seized from the petitioner. Learned counsel for the UT has with much emphasis argued that the seizure of these posters from the petitioner goes to show that he has sympathy for the banned organization that he may work in its favor on any given date as and when called upon by the said banned organization. 9. In support of his submissions, he has referred to definition of Unlawful Activity and Unlawful Association in Section 2 (1) O & P of the Unlawful Activities (Prevention Act 1967). 10. Per contra, learned counsel for the petitioner has submitted that the seizure of these three so called posters of the LeT were never mentioned in the grounds of detention and was not a factor that gave rise to the subjective satisfaction of the detaining authority to pass the impugned order. But in the grounds of detention, it details relating to FIR No. 11/2020, it is specifically mentioned that the personal search of the petitioner led to the discovery of the two posters of the LeT outfit. As regards the contention of the learned counsel for the UT that the discovery of the said posters itself is reasonable grounds from detention, which the learned counsel says is based upon interpretation of Section 2 (1) O & P of the UAPA. The said section defines unlawful activity as an Act requiring an action on the part of an individual or association against whom a charge of unlawful activity is to be levelled. 11. For the arguments of the learned counsel for the UT to succeed, there must be a provision within the UAPA itself which prescribes the possession of any material relating to banned organization from the detenue itself as unlawful. Undoubtedly, the allegations are there but, to show the petitioner’s association with the said banned organization, he has been referred to as “admirer”, “staunch member of anti-national elements” and “staunch follower of the militant associate of banned terrorist organization of LeT” and also as “trouble monger”. Undoubtedly, the allegations are there but, to show the petitioner’s association with the said banned organization, he has been referred to as “admirer”, “staunch member of anti-national elements” and “staunch follower of the militant associate of banned terrorist organization of LeT” and also as “trouble monger”. These words and phrases are broad based and general in nature and no materials in support of these observations have been provided in the grounds of detention and, therefore, it would be impossible for the petitioner to give an effective representation against the allegations. 12. Besides this, the absence of compelling circumstances in the grounds and order of detention, to detain the petitioner by the impugned order, moreso, when the petitioner is in judicial custody in FIR no. 67/2022 where inter alia, an offence under the UAPA is also registered against the petitioner and the petitioner has till date not moved an application for grant of bail and neither he has been granted bail by the learned Trial Court renders the impugned order bad in law. 13. In view of what has been argued hereinabove and considered by this Court. This Court is of the opinion that the impugned order deserves to be quashed. 14. Under the circumstances, the impugned order is quashed. 15. Disposed of.