Jammu & Kashmir High Court - Srinagar Bench
Mohammad Akhter Mir vs Ut Of J&K And Ors on 2 April, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
S. No. 61
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 613/2022
Mohammad Akhter Mir ...Petitioner(s)
Through: Mr. Syed Sajad Geelani, Advocate.
Vs.
UT of J&K and Ors. ...Respondent(s)
Through:
CORAM:
HON'BLE MR JUSTICE RAHUL BHARTI, JUDGE
ORDER
02.04.2024 Heard learned counsel for the petitioner as well as for the respondents. Perused the writ record as well as detention record produced.
The petitioner is aggrieved of his preventive detention which has resulted in denial of his guaranteed fundamental right to personal liberty under article 21 of the Constitution of India and, therefore, came to petition this court through his wife through the medium of the present writ petition under article 226 of the Constitution of India so as to seek restoration of his personal liberty.
The respondent No. 2-the District Magistrate, Baramulla, acting upon a dossier No.CS/PSA/2022/2259:42 dated 07.04.2022 served by the Sr. Superintendent of Police, SSP Baramulla against the petitioner, came to drawn his purported subjective satisfaction getting formulated in the grounds of detention to justify the detention of the petitioner in order to prevent him from acting in any manner and indulging in any activity prejudicial to the security of the State being one of the purported grounds for effecting preventive detention under section 8(1)(a)(i) of the Jammu and Kashmir Public Safety Act, 1978.
The preventive detention order No. 16/DMB/PSA/2022 dated 08.04.2022 came to be passed by the respondent No. 2-the District Magistrate, Baramulla accompanied with grounds of detention in which the petitioner came to be painted and projected to be on the wrong side of law in terms of his inclinations and indulgences getting exhibited from his implication in FIR No. 30/2021 registered by Police the Station Boniyar for alleged commission of offences under section 7/25 Arms Act 1959 and sections 18, 23 of Unlawful Activities Prevention Act, 1967 which resulted not only in presentation of final police report against the petitioner and the other accused persons but also resulted in arrest and custody of the petitioner for the said case and lodged in Sub Jail Baramula.
Thus, at the time of passing of the detention order, the petitioner was already in a state of judicial custody on account of criminal cases going on against him framed by the respondent No. 2-the District Magistrate Baramulla.
The grounds of detention and also the dossier served by the SSP Baramulla comes up with the half facts and half suppression situation vis-à- vis the petitioner. The SSP Baramulla has framed the dossier as if he was least bound and interested to know and then let the District Magistrate Baramulla be apprised as to what was the ongoing state of criminal trial against the petitioner in the context of whether bailed out or not and what is the narrative of said criminal case against the petitioner.
It is pertinent to mention here that FIR No. 30/2021 dated 26.04.2021 had resulted in presentation of the Police Challan on 21.10.2021 meaning thereby that by the time the SSP Baramulla was engaged in the process of preparing the dossier against the petitioner, which came to be finally formulated on 07.04.2022, the trial of the petitioner was already in its currency before the concerned criminal court and still the SSP Baramulla was at loss to apprise the District Magistrate Baramulla as to what for the preventive detention of the petitioner was being solicited by him keeping in view the contemporary situation of the petitioner already being under trial and under judicial custody in connection with the trial of FIR No. 30/2021.
Notwithstanding the fact that the preventive detention of the petitioner came to be confirmed by the Advisory Board under the Jammu and Kashmir Public Safety act, 1978 in terms of its opinion dated 27.05.2022 to be followed by the confirmation order passed by the Government of UT of Jammu and Kashmir, the fact remains that the full status of the trial of the petitioner in the criminal case was never shared inter-se the SSP Baramulla, the District Magistrate Baramulla, the Advisory Board and the Home Department Government of UT of Jammu and Kashmir.
This deficiency of sharing of relevant and vital factual aspects concerning the petitioner is a vitiating factor rendering the preventive detention exercise attending the petitioner infirm and illegal.
The preventive detention is supposed to be carried out on the fullness of essential and unedited facts attending a prospective detenue and therefore if despite availability of the entire state of facts concerning a prospective detenue, the sponsoring authority as well as the preventive detention making authority indulge in cherry picking of the facts to somehow stitch a preventive detention dossier and an order, then that means that the seriousness with which the deprivation of the fundamental right of a citizen guaranteed under article 21 of the Constitution of India is being intended and carried out is nothing but decrying fundamental right of a citizen without adopting due course of law.
Due course of law surely would mean within itself a due application of mind on the part of the authority concerned to the facts and circumstances of the case and in case if the facts and circumstances of the case are in deficient supply then that means that application of the mind on the part of the authorities concerning vested with authority to deprive a person of his/her fundamental right is being exercised in a mechanical manner just for the sake of record making and not for the actual purpose for which the law has envisaged the authority to be exercised.
In view of aforesaid, the preventive detention of the petitioner is held to be bad and therefore deserves to be quashed.
Accordingly the preventive detention Order No. 16/DMB/PSA/2022 dated 08.04.2022 read with subsequent confirmation order issued by the Government against the petitioner are hereby quashed.
The petitioner is restored to his personal liberty and District Magistrate, Baramulla as well as the Superintendent Jail concerned are directed to set the petitioner to his personal liberty if not required to be detained in any pending criminal case against him.
Detention record produced by Mr. Jehangir Ahmad Dar, learned GA, in a photostat form is returned to him in the open court.
Disposed of.
(RAHUL BHARTI) JUDGE SRINAGAR 02.04.2024 Ishaq