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2020 Supreme(J&K) 408
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Sindhu Sharma, J.
(Through virtual mode)
Abdul Hameed Mir
Versus
State of J&K and Ors.
WP(Crl.) No.235/2019
Decided on 23-10-2020
For the Petitioner(s):Mr. Kaiser Ali, Advocate
For the Respondent(s): Mr. Sajjad Ashraf, GA
Headnote:
Constitution of India ,1950 - Article 22(5) - Arms Act and 13 ULA(P) Act - Sections 7/25 - Jammu and Kashmir Public Safety Act 1978 - Section 8 – FIR - Quash Detaining Authority has not shown any awareness of earlier detention or its quashing by High Court and same has not been reflect in grounds of detention as such impugned order of detention is vitiated all relevant material relied upon by Detaining Authority while passing impugned order of detention has not been communicated Detaining Authority has not given any cogent and compelling reasons have been given for passing order of detention when was already in custody is not an English literate person and can understand only Urdu & Kashmiri languages but translated copy of same has also not been furnished to make an effective representation against detention –Held, Case on touch stone of law laid down above could not have been detained after taking recourse to provisions of JKPSA when he was already in custody of police authorities- His custody in police for offences stated above has been converted into custody under impugned detention order- May be detaining authority might have been laboring under belief that applies for bail he may succeed in seeking his release but this apprehension of detaining authority could have been guarded against zealously by resisting and opposing bail application - In event of his release on bail State could have exercised its right to assail order higher forum- This single infraction knocks bottom out of contention raised by State that can be detained preventatively when he is already in custody and has not applied for bail- It cuts at very root of State action- State could have taken recourse to ordinary law of land - Petition allowed
Judgment
Sindhu Sharma, J.—The District Magistrate, Kupwara vide his detention order No.19/DMK/PSA of 2019 dated 17.07.2019 detained Abdul Hameed Mir S/o Late Mohammad Sultam Mir, under Section 8(1)(a)(i) read with clause (ii) of sub-section (2) of Section 8 of the Jammu and Kashmir Public Safety Act, 1978, to prevent him from indulging in activities in any manner prejudicial to the security of the state. The detenu has challenged his detention through his father-in-law, Ghulam Hassan Dar.
2. The case set up by the detenu in the petition is that the police had falsely implicated the detenu in FIR No. 393/2017 under Sections 307, 212 RPC, 7/27 Arms Act, 19 ULA (P) Act, registered at Police Station, Handwara on false and flimsy grounds. Pursuant to the impugned detention order, the detenu has been taken under preventive detention.
3. The detention order has been challenged by the detenu on the grounds that; (i) the same has been passed without any application of mind as there was no cogent and compelling reason for passing the order of detention; (ii) the grounds of detention are replica of the dossier as there is no application of mind by the Detaining Authority; (iii) the detenu has not been granted any opportunity of being heard by the Advisory Board; (iv) the grounds of detention are vague, uncertain, unreal, untrue, indefinite and ambiguous in all material particulars, therefore, the detention is unsustainable; (v) all the material replied upon by the Detaining Authority has not been provided to the detenu and this has resulted in an infraction of his right as guaranteed under Article 22(5) of the Constitution of India and Section 13 of the Public Safety Act.
4. Respondents have filed the counter affidavit as well as produced the detention record.
5. Mr. Sajjad Ashraf, learned Government Advocate appearing on behalf of the respondents, submits that the detenu was detained by virtue of detention order bearing No. 19/DMK/PSA of 2019 dated 17.07.2019 passed by the District Magistrate, Kupwara validly for his activities which were prejudicial to the security of the state. All the statutory requirements and constitutional guarantees as provided to the detenu have been fulfilled and complied with. It is also submitted that in compliance to the District Magistrate’s order, the warrant was, accordingly, executed by the Executing Officer-ASI Abdul Majid, No.39/H Police Station, Handwara, who has read over and explained the warrant and grounds of detention to the detenu in the language, he understands and the detenu was also informed of his right to make a representation to the Detaining Authority as well as the Government against his detention. The detenu has been provided all the material relied upon by the Detaining Authority alongwith translated copies of the same were provided to him. He, however, has not made any representation against his detention.
6. Heard learned counsel for the parties and perused the record.
7. The grounds of detention reveals that the detenu is over ground worker of Lashker-E-Toiba outfit, he aids and abets in the terrorist activities in the state of J&K. He was involved in various unlawful activities providing logistic support to the militants. The detenu was also found to be involved in FIR No. 393/2017 u/s 307, 212 RPC, 7/27 Arms Act, 19 ULA(P) Act registered at Police Station, Handwara, FIR No. 337/2016 u/s 188, 148, 149, 307, 336, 332, 427 RPC. The detenu had secured bail in FIR No. 393/2017 and, therefore, there was an apprehension based on reliable inputs that he would cause disturbance of law and order. The Detaining Authority on the basis of material produced arrived at its subjective satisfaction that there exists cogent grounds to concur the detenu would pose grave danger to the security of the state.
8. One of the most precious right as guaranteed under the Constitution of India is personal liberty. No one can be denied of his right to life and personal liberty except in accordance with proce
