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2023 DIGILAW 638 (JK)

Rayees Ahmad Zargar v. Union Territory of J&K

2023-10-13

ATUL SREEDHARAN

body2023
ORDER : The present petition has been filed by the petitioner who is aggrieved by the order of detention issued by the respondent no.2 dated 17.12.2018, vide order no. 147/DMS/PSA/2018. By the said order of detention, the petitioner was taken into custody after the passage of four years on 13.11.2022 when it was executed. 1. Learned counsel for the petitioner submits that the entire proceeding against him is based upon stale procedures which were initiated in December 2018. The first contention is that the order of detention and the grounds of detention are vague. The grounds of detention has been gone through by this Court. Briefly stated, the order of detention reflects that the petitioner who is resident of village Meemindar, Shopian, left schooling after the ninth class and was working as an electrician. Thereafter, the grounds reflect that he fell mechanisations of secessionists who espoused the cause of cessation of the J&K State from the Union of India and that he supported the militants and developed such qualities “which later on proved detrimental to the peace and stability in the district”. It is also alleged in the grounds of detention that he developed contacts with one Shakeel Ahmad Thoker an activist of Hurriyat and other OGW’s like Riyaz Ahmad Ganie, Mohammad Shafi Shaikh of Shopian and used to chalk out Strategies and formulate plans to inflict maximum damage to security forces and police. He is also alleged to have developed contacts with dreaded militants namely Zeenat-ul-Islam, Naikoo, Showkat Ahmad, Waseem Ahmad and others who were operators in district Shopian and provided them every possible logistic support. It is also alleged that he has associates like Mohammad Shafi Shaikh and Riyaz Ahmad Ganie and constructed a safe hide out to be used by militants. 2. He is also alleged to be a vociferous supporter of secessionist ideology and that he was instrumental in arranging hordes of youth of district Shopian and abetted them to resort to Stone Pelting and how freedom from India can be brought about by violent means. It is also alleged that he is a staunch and hardcore stone pelter. The grounds of detention also gives the reference of six FIRs, all of the year 2018. All these cases relate to stone pelting, in which the involvement of the petitioner is alleged. It is also alleged that he is a staunch and hardcore stone pelter. The grounds of detention also gives the reference of six FIRs, all of the year 2018. All these cases relate to stone pelting, in which the involvement of the petitioner is alleged. The grounds of detention and the order of detention obviously cannot give any reasons behind the delay in execution. However, the execution report of 13.11.2022, has also been seen by this Court. There is not even one word in the execution report with regard to the delay in executing the order of detention dated 07.12.2018, on 13.11.2020. Even on the receipt of the grounds of detention, there is no reason given with regard to the delay. The approval of the detention order by the Government vide order dated 20.12.2018, is scandalous to say the least. The fourth paragraph of the order approving the detention order of the petitioner dated 17.12.2018 reads as follows: “Whereas, the detenue has also been endorsed a copy of the grounds of detention relied upon by the detaining authority to enable him to make a representation against his detention order as provided under the J&K Public Safety Act, 1978”. 3. The petitioner was only taken into detention on 13.11.2022 as per the execution order. Under the circumstances, it is unthinkable how he could have endorsed the copy of the detention order to enable him to make a representation even before he was taken into detention. 4. Learned counsel appearing for the State, while vehemently opposing the petition for quashment of the impugned order, has drawn the attention of this Court to the reply filed by the State with specific reference to the reply to ground(d) of the petition on internal Page-7 of the reply which reads as follows: “In reply to Para (d), it is submitted that the petitioner has been evading his arrest after the order of detention came to be passed against him. It is further submitted that hectic efforts were made by the Police authorities to execute the PSA warrant issued by the detaining authority/ answering respondent, however, as already mentioned the same was not executed for the fact that the petitioner was evading his arrest.” It is necessary to point out here that this ground has only been taken in the reply. This Court can understand that this contention could not be borne out either in the grounds of detention or in the order of detention because if the petitioner was absconding the same it is a fact which could have come to the notice of the State only while attempting to serve or execute the order of detention and not before that. However, the execution report of 13.11.2022, is also conspicuous by the absence of such an averment that the execution of the impugned order could not be done in the year 2018, itself as the petitioner was absconding. 5. Here it is also relevant to mention Section 12 of the J&K Public Safety Act 1978, as pointed out by the learned counsel for the petitioner that where the Government has a reason to believe that a person in respect of whom an order of detention has been made and has absconded or concealed himself, the Government was, as per Clause- A of Section 12, required to make a report in writing of the fact to the Magistrate of the 1st Class having jurisdiction where the detenue ordinarily resides and thereafter, provisions of Section 87, 88 & 89 of the Code (Criminal Procedure) would apply in respect of the detenue and his property, as though, the order directing that he be detained, were a warrant issued by the Magistrate. Clause-B of Section 12 provides that vide notified order, the detenue was to be directed to appear before such officer and at such place within stipulated period and where the detenue fails to comply with the said direction, the detenue shall expose himself to be punished for a maximum term of one year where the detenue was unable to prove that it was not possible for him to comply with the order. 6. Indisputably, the State has not followed the procedure under Section 12 of the PSA which it was bound to if the petitioner was absconding. This assumes greater significance in the backdrop of the fact that the petitioner has never been arrested in any of the six FIRs alleged to have been registered where he is supposed to be an accused and neither any proceeding has been initiated by the trial court under Sections 87, 88 & 89 of the Cr.PC to have been declared as a proclaimed offender, as so stated by the learned counsel for the petitioner. 7. 7. Under the circumstances, learned counsel for the petitioner has argued that the present detention of the petitioner falls foul on several grounds but most importantly, on the grounds of vagueness in the grounds of detention as the detention order was not served upon petitioner immediately after its passing, and the execution order dated 13.11.202 does not mention that the petitioner was absconding resulting in the delay of the execution of order of detention. 8. Under the circumstances, the impugned order of detention of the petitioner stands quashed, he shall be released forthwith. 9. Before parting with this case, this Court wants to record its concern in the manner in which the order dated 20.12.2018 was passed by the Government by its Principal Secretary, Department of Home, where as stated hereinabove earlier, the order mentions that the copy of the order was endorsed to the detenue, to enable him to make a representation against his detention. By necessary implication, the observation of the Officer in the order dated 20.12.2018, confirming the order of detention, proceeds on the premises that the detenue was already in detention and has received a copy of the grounds of detention and had an opportunity to make a representation against the detention, while undisputedly, it is the case of the State itself before this Court today that the petitioner was allegedly absconding and therefore, the order of detention it could not have been executed in the year 2018. Such approval to the orders of detention given by Senior Officers of the Government is a cause of grave concern. The order in this case reflects that it was prepared by the clerical staff in a cavalier manner indulging in copy paste, and which thereafter was signed by the authority without verification of the facts. In an appropriate case anytime in the future, such orders may result in action against the officer passing them which arises from cut and paste and a sheer disdain for the rights and liberties of the citizen. 10. Disposed of.