Point of Law: order of detention - Execution of - It transpires that impugned order was issued by detaining authority on 22nd November 2019 and same was confirmed by Government under Section 17(1) of Act 1978 for a period of six months in first instance. Same was extended for a further period of six months in terms of Government Order There is, however, no further extension issued by Government that could be traced in records.

JUDGMENT :

SANJEEV KUMAR, J.

1. Impugned in this petition is order of detention of the petitioner issued by District Magistrate, Kupwara (the detaining authority) vide its Order No. 59-DMK/PSA of 2019 dated 22nd November 2019 whereby the petitioner has been taken into preventive custody with a view to prevent him from acting in any manner prejudicial to the security of the State. Impugned order is stated to have been executed on 23rd November 2019.

2. Before adverting to the grounds of challenge taken by the petitioner to assail his detention, it is necessary to briefly state the factual background leading to the issuance of impugned order of detention.

3. Superintendent of Police Handwara vide his Communication No. Pross/Dossier/2019/ 6573-76 dated 5th November 2019 placed the detail of activities in respect of petitioner before the detaining authority and recommended his detention under the provisions of Jammu and Kashmir Public Safety Act. Along-with the dossier, the SP concerned also produced copy of FIR 87/2019 and a statement of witnesses recorded therein. As per the dossier, the petitioner was stated to be an active member of an unlawful terrorist organization known by the name of Lashkar-e-Toiba (LeT). It is stated that he associated with the aforesaid organization with an intention to take active part in recruiting youths from different parts of the valley to commit acts of terrorism and create an atmosphere of terror in the valley especially in the Handwara/Kupwara belt. The petitioner, as claimed, had worked as Special Police Officer (SPO) in the State Police Department and during his deployment as SPO, he came in contact with Zakir Rashid Bhat of Kupwara during funeral procession of one local militant namely Liyaqat Ahmad, the relative of terrorist namely Zakir Rashid Bhat. He became friendly with said Liyaqat Ahmad and managed his contact with one young boy namely Shafat Yousuf Malik whom he persuaded and motivated to join militant rank. It is further alleged that the new recruit namely Shafat Yousuf Malik was apprehended by the Handwara Police during checking at Kulangam. During his personal search, some arms and ammunition were recovered from his possession and FIR No. 87/2019 under Section 7/25 of the Arms Act, 18-B, 38 ULA(P) Act was registered with the Police Station Handwara. During investigation, the said person disclosed his ordeal and, on the disclosure, made by said Shafat Yousuf Malik, the petitioner was arrested.

4. The detaining authority considered the dossier of activities submitted by the police and arrived at its subjective satisfaction that remaining of the petitioner at large is detrimental to the interest of security of State and accordingly issued the impugned order of detention.

5. The petitioner has assailed the impugned order of detention inter-alia on the following grounds:-

(i) That the detaining authority has not applied its independent mind to derive its subjective satisfaction with regard to the necessity of placing the petitioner under preventive detention and has only relied upon the dossier placed before it by SSP Handwara.

(ii) That the impugned order is vitiated for non-application of mind of the detaining authority, in that, the detaining authority has not shown any awareness with regard to the petitioner being in police custody in case FIR No. 87/2019 and his subsequent release on default bail on account of failure of the police to file challan within the statutory period.

(iii) That the detaining authority in the grounds of detention has clearly mentioned that the detenu was at large and not in police custody and, therefore, has shown its complete ignorance that the detenu was arrested in FIR No. 87/2019 and was in police custody till he was bailed out in default of the investigating officers to file the challan within the statutory period.

(iv) That all the documents particularly the statement of the witnesses and other relevant material relied upon in the grounds of detention was never