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2024 DIGILAW 51 (JK)

Manzoor Ahmad Bhat v. UT of J&K

2024-02-16

RAHUL BHARTI

body2024
ORDER : 1. Heard learned counsel for the parties and perused the writ pleadings, reply affidavit and the documents therewith. The record produced from the respondents’ end also perused. 2. The petitioner is aggrieved of his misconceived and unwarranted preventive detention carried out by virtue of an order no. 75/DMP/PSA/22 dated 27.09.2022 whereby the petitioner has been detained on the purported ground that the petitioner’s activities are found to be prejudicial to the Security of State warranting his detention in order to prevent him from further carrying out apprehended acts of omission or commission prejudicial of the Security of State. 3. The detention order no. 75/DMP/PSA/22 dated 27.09.2022 has been passed by the District Magistrate, Pulwama in exercise of jurisdiction and authority under section 8 of the J&K Public Safety Act, 1978. The petitioner has come to be taken into custody and detained. 4. This order no. 75/DMP/PSA/22 dated 27.09.2022 has further been confirmed and approved by the Government by its subsequent government orders to the said effect thereby continuing with the detention of the petitioner to last for two years’ period, being the maximum detention period for which a person can be subjected to preventive detention custody for the objectionable acts. 5. The situation which has reportedly led to the passing of the detention order no. 75/DMP/PSA/22 dated 27.09.2022 by the District Magistrate, Pulwama is a dossier no. CS/Pros/PSA/DPO/22/184/87 dated 26.9.2022 whereby the Senior Superintendent of Police (SSP), Pulwama came to provide the purported factual basis for calling the District Magistrate Pulwama to consider subjecting the petitioner to preventive detention by denying him his fundamental right to personal liberty. 6. The dossier so prepared and served by the SSP Pulwama for the sake of reference as to how and what is the tone and tenor of the dossier on the basis of which personal liberty of the petitioner was sought to be curtailed, is reproduced as under: “The subject was born at his native village Nikloora of District Pulwama on 01.03.1996, the subject got his basic education from Govt. Middle school Nikloora upto 5th class. After that the subject got admission in Govt. High School Litter where from he passed his 8th class examination. After that the subject left his studies due to low interest towards education and started to work as a labour. Presently the subject is driving his own tractor. Middle school Nikloora upto 5th class. After that the subject got admission in Govt. High School Litter where from he passed his 8th class examination. After that the subject left his studies due to low interest towards education and started to work as a labour. Presently the subject is driving his own tractor. The subject is an active conduit of banned terrorist organization (LeT) and often aids and abets the terrorist activities carried out by the banned terrorist organization in and around the Pulwama town. The subject besides abetting the terrorist acts of the banned terrorist organization (LeT) harbors its terrorists - locations and is involved in motivating and instigating the youth of the District Pulwama and its adjoining areas for anti-national and anti-social activities and provokes the innocent populace of the area for indulging in activities which are prejudicial to the overall peace, security and tranquility of the UT of J&K in general and District Pulwama in particular. The subject used to provoking youth in the name of religion to join the terrorist ranks. The subject has a mental bent towards insurgency and he along with the other anti-national elements used continuing his anti-national and anti-social activities and the potential threat to the security of the UT of Jammu and Kashmir. It is in place to mention here that the subject is of fundamentalist ideology and with the passage of time, the subject become a hard-core fundamentalist and sympathizer of terrorists and provided a logistical support to the terrorists and is working as over ground worker (OGW) of a banned terrorist organization (LeT). The activities of the subject have been created enormous hardships for the general public as they cannot lead a normal life because of the disturbance created by the subject and his other associates. The subject was working as an OGW for banned terrorist outfit (LeT) and with the passage of time became sympathizer of militants and is providing all logistic support to the militants and is working as over ground worker (OGW for banned terrorist organization Lashker-e-Toiba (LeT) especially Arif Rasihd Wani R/o: Shirmal Zainapora Shopian. The subject is providing his home as hiding place for terrorists and his support to terrorists has helped them to plan attacks on the civilians, non-locals, Police, and Security forces. The subject is providing his home as hiding place for terrorists and his support to terrorists has helped them to plan attacks on the civilians, non-locals, Police, and Security forces. The subject has a mental bent towards insurgency and he along with the other anti-national elements is still continuing his anti-national and antisocial activities and thereby posing potential threat to the security of the fundamentalist ideology. The subject aided militants to make a detailed survey of the Pulwama area for carrying out terrorist acts upon security forces. The subject along with his associates has preplanned manner used to mobilize the general public for unlawful activities and hatched the conspiracy to attack upon security forces deputed in the area. The subject is presently at large and under these circumstances it is imperative to book him under the provisions of preventive laws required for such offenders in order to curb his antinational activities. As the subject is currently providing the logistic support and lead to the banned terrorist which has create panic among the general public and affirms the presence of terrorism in the UT of J&K. The activities of the subject as projected supra are harshly running against the security and sovereignty of the country. The subject is a potential threat for the security of the state and remaining at large of the subject at this crucial juncture particularly owing to fragile security scenario of the area, will be highly detrimental to the security and sovereignty of the country. As such, there are compelling reasons for detention of the subject under the provisions of J&K Public Safety Act at this stage. In view of above, it is requested that a warrant of detention having effect of detention of the subject namely Manzoor Ahmad Bhat S/o Sonaullah Bhat R/o Nikloora Litter Pulwama under the provisions of J&K Public Safety Act may be issued at an earliest, which shall be in the interest of security of the State.” 7. Acting upon the said dossier, the District Magistrate, Pulwama is said to have applied/carried out an independent application of mind to draw a subjective satisfaction as to whether the case for preventive detention of the petitioner is made out or not. In this regard, the District Magistrate, Pulwama formulated purported grounds of detention. 8. Acting upon the said dossier, the District Magistrate, Pulwama is said to have applied/carried out an independent application of mind to draw a subjective satisfaction as to whether the case for preventive detention of the petitioner is made out or not. In this regard, the District Magistrate, Pulwama formulated purported grounds of detention. 8. Before this court proceeds to consider the grounds of detention so drawn out by the District Magistrate, Pulwama as the outcome of his subjective satisfaction, this court needs to bear in mind that it is one thing for a law and enforcement agency to present a case against a prospective detenu before the District Magistrate concerned for seeking his preventive detention whereas it is another thing for the District Magistrate concerned to serve the preventive detention order as asked for by the law and enforcement agencies. 9. Preventive detention jurisdiction which adversely deals with personal liberty of a subject, which is a fundamental right guaranteed under article 21 of the Constitution of India, is not a matter of demand and supply working model inter se the Law and Enforcement Agencies and a District Magistrate concerned or for that matter the State/UT Government. It is the factual inputs on which a preventive detention case is required to be set up whereupon the subjective satisfaction of the District Magistrate is meant to apply for arriving at an informed opinion that the facts presented warrant exercise of preventive detention jurisdiction under the relevant clause of J&K Public Safety act 1978. 10. The grounds of detention on which the District Magistrate, Pulwama came to lend himself the purported subjective satisfaction for passing the preventive detention order no. 75/DMP/PSA/22 dated 27.09.2022 is reproduced hereunder for the purpose of exhibiting as to whether the said grounds of detention reflect an exercise in the name of application of mind on the part of District Magistrate Pulwama: “You Mr. Manznor Ahmad Bhat aged about 26 years are an ordinary resident of village Nikloora up to 5th class. After that you got admission in Govt. High School Litter where from you passed your 8th class examination. After that you left your studies due to lack of interest towards education and started to work as a labourer. Presently you have been driving your own tractor to contribute to your family economically. You belong to a banned terrorist organization called as Lashker-e-Toiba (LeT). High School Litter where from you passed your 8th class examination. After that you left your studies due to lack of interest towards education and started to work as a labourer. Presently you have been driving your own tractor to contribute to your family economically. You belong to a banned terrorist organization called as Lashker-e-Toiba (LeT). You have been helping the terrorists to carry out violent activities in and around the Pulwama town. You have been harboring the active terrorists at different unknown and far-flung destinations. You have been involved in motivating and instigating the youth of district Pulwama and its adjoining areas for carrying out subversive activities in the area thereby causing threat to the security of the State. You by exploiting the religious sentiments of the youth of the Pulwama area, made their joining in militant cadres possible thereby creating obstacles for security forces in bringing normalcy in the area. You, being a fundamentalist in nature, have been continuously carrying out subversive activities in the Pulwama area thereby posing potential threat to the security of the State. Having strong belief in militancy you have been providing all logistical support to the terrorists and have been working as Over Ground Worker (OGW of the banned terrorist organization (LeT). You have been creating obstacles for peace loving people and harass them if they do not follow your instructions for making the law and order situation worse. You were working as an OGW or banned Terrorist Outfit (LeT) and with the passage of time became sympathizer of militants and have been providing logistic support to the militants and have been working as Over Ground Worker (OGW) for banned Terrorist Organization Lashker-e-Toiba (LeT) especially for Arif Rashid Wani R/o Shirmal Zainapora Shopian. You have been providing your home as hiding place for terrorists and help them to plan attacks on the civilians, non-locals, Police, and Security forces personnel. You have a mental bent towards insurgency and you along with the other antinational elements, are still continuing antinational and anti-social activities thereby posing potential threat to the security of the State. You aided militants in making a detailed survey of the Pulwama area for carrying out terrorist acts upon security forces. You along with your associates in a preplanned manner used to mobilize the general public for unlawful activities and hatched a conspiracy to attack upon security forces deputed in the area. You aided militants in making a detailed survey of the Pulwama area for carrying out terrorist acts upon security forces. You along with your associates in a preplanned manner used to mobilize the general public for unlawful activities and hatched a conspiracy to attack upon security forces deputed in the area. You are presently at large and under these circumstances, it is imperative to book you under the provisions of preventive laws required for such offenders in order to curb such antinational activities. You have been providing the logistic support and leads to the banned terrorists, which has a tendency to create panic among the general public and affirms the presence of terrorism in the UT of J&K. Presently you are at large and your remaining at large would pose a severe threat to the Security of the State as prevailing security scenario is fragile because few non-Muslim killings have been witnessed in the recent past. The activities as projected in the foregoing paras of the instant dossier run heavily against you and are highly prejudicial to the Security of the State. Being highly motivated to carry out the illegal designs you are not likely to desist from indulging in anti-social activities and the normal laws are not sufficient to deter you from indulging in such undesirable activities. Therefore, in order to prevent you from indulging in the activities, which are prejudicial to the security of State, it is necessary to detain you by invoking the provisions of J&K Public Safety Act, 1978.” 11. A comparative reading of the dossier as well as the grounds of detention would show that the grounds of detention is a carbon copy of the dossier text-wise as well as context-wise. The dossier itself is nothing but a shallow serving by the SSP Pulwama without any iota of factual content therein except self-drawn assumptions on the part of the SSP concerned with respect to the petitioner so much so when in the dossier the SSP Pulwama is meaning to say that the petitioner has been providing his home as a hiding place for terrorists and helping them to plan attacks on civilians/non-locals/police and security forces personnel, the SSP Pulwama is found missing in referring as to which home and in which village/town/city the petitioner is alleged to have been so providing the hiding place. 12. 12. The District Magistrate, Pulwama in the name of application of mind matched the SSP Pulwama concerned in entertaining the same tone and tenor of assumption as fed by the SSP Pulwama which is exhibited from the fact that the purported grounds of detention order is a copy-paste of the dossier. 13. The satisfaction which is permissible to be drawn by the District Magistrate vested with preventive detention jurisdiction under the J&K Public Safety Act, 1978 no doubt has to be in the subjective realm but that does not and cannot mean that the District Magistrate is not to have objective state of facts present before him served by the sponsoring authority seeking the preventive detention of a given person. 14. When examining in the aforesaid perspective the grounds of detention as well as the detention order of the petitioner, this court is led to a conclusion that the preventive detention of the petitioner has been effected on speculation and assumptions and the detenu cannot be allowed to carry forward its life any further at the cost of doing serious wrong to the fundamental right to personal liberty of the petitioner. In fact, during the course of his preventive detention, the petitioner has come to suffer a personal tragedy in the death of his eight months’ old daughter who came to expire on 10.2.2024 while the petitioner is in the state of preventive custody and could not have even the solace of being with his wife in the moment of personal loss and grief because of preventive detention slapped on him by fictionalizing his personal liberty prejudicial to the Security of State. 15. The preventive detention of the petitioner is, thus, held to be illegal and, accordingly, the preventive detention order no. 75/DMP/PSA/22 dated 27.09.2022 passed by District Magistrate, Pulwama and the consequent orders of approval and confirmation by the Government of the UT of Jammu and Kashmir are hereby quashed and the petitioner is directed to be restored to his personal liberty by the Superintendent District Jail, Kathua. 16. In view of the quashment of the detention order under challenge in the main petition, the CM No. 539/2024 has been rendered infructuous. The same is disposed of as such. 17. A copy of this order be forwarded to Superintendent District Jail, Kathua by the Registrar Judicial, Srinagar of this court for the purpose of notice and compliance.