Jammu & Kashmir High Court
Mehraj-Ud-Din Rather vs State And Ors. on 6 November, 2006
Equivalent citations: 2007(3)JKJ114
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. District Magistrate Baramulla's Order No. DMB/PSA/3089 dated 29th of April 2006 detaining Mehraj-ud-din Rather S/o Mohammad Akbar Rather R/o Krankshivan Colony Sopore in preventive custody has been questioned in this petition by the petitioner. District Magistrate Baramulla has directed the detention of the petitioner on grounds which read thus:
The perusal of the records furnished by Sr. Superintendent of Police Baramulla reveal that you are a Local Trained Militant of a militant organisation Hisbul Mujahidin. Your aim and object is to spread panic and fear in the minds of the peace loving people of the J&K State. Your object is also to cause disruptive activities by planning and causing disturbances. You have lodged a hate campaign by causing terrorist activities to provoke violence and to spread fear among general public and to put them under the threat of terrorism. You exhaurted your associates to cause disturbance among general public. You continued to indulge in such nefarious activities, which are prejudicial to the security of the State.
Your aim and object is to demolish peace and tranquility of the state and strike terror. You continued to disturb peace and normal life of the people. You extended full support to militant activities aimed to destabilizing the country in view of the prevailing situation, especially in the valley. You have been considered a potential threat to the security of the State.
You are engaged in seeking secession of the State of Jammu and Kashmir, from the Union of India through terrorist and violent means. You have been providing all types of assistance to the Pak trained militants, to facilitate them in their activities prejudicial to the security of the State. You have been instrumental in creating terror in the minds of the general public. In order to carry out your object, you have launched a purposeful and well organized programme to strengthen the cause of militancy.
In the year 2005, you came into contact with one Fayaz Ahmad Najar, a close associate of dreaded HM militant Jehangir Ahmad Khan @ Kinga, who introduced you to said militant. On the motivation of said Jahangir Ahmad Khan, you joined militancy and affiliated yourself with said outfit. You sought training in the use and handling of weapons locally from the active militants operating in the area. You also worked as a carrier and informer for the militants and took part in various subversive activities. However, your activities were checked on 18.04.2006, when on a specific information 46 RR and Police Baramulla apprehended you and your two associates from Gulnar Park Baramulla and recovered arms/ammunition such as 02H/G from your possession. Accordingly case FIR No. 83/06 Under Section 7/25 A. Act was registered against you in PS Baramulla.
From what has been stated above, it is evident that you are a Local trained militant of Hizbul Mujahidin out fit and your activities are prejudicial to the security of the state as well, as the law enforcing agencies of the state in the event of your release on bail Therefore, you are ordered to be detained under the provisions of J&K Public Safety Act 1978.
2. Learned Counsel appearing for the petitioner has attacked the order of detention of District Magistrate Baramulla saying that there was no material worth the name on the basis whereof the petitioner could be detained in preventive custody.
3. Learned Counsel further submitted that the petitioner had been deprived of his right to make an effective representation against his detention because of non-supply of requisite material which had been relied upon by the District Magistrate and in that view of the matter he had been deprived of his constitutional right under Article 22(5) of Constitution of India and legal right under Section 13 of Jammu and Kashmir Public Safety Act 1978.
4. Learned State Counsel, on the other hand, produced the detention records and submitted that there was enough material on records to justify the preventive detention of the petitioner for the second time. He referred to various activities of the petitioner as recorded in the grounds of detention to justify the action of District Magistrate Baramulla.
5. I have gone through the detention records produced by Shri Jehangir Iqbal, learned State Counsel.
6. The petitioner being already in custody of the respondents, his detention has been ordered by learned District Magistrate on the ground that in the event of his release on bail his activities would pose imminent threat to the security of the State. In order to find out as to whether or not there was any material available on records on the basis whereof such satisfaction could be recorded by District Magistrate, the records produced by learned State Counsel were perused. The record produced by learned State counsel, do not contain even a whisper that there was any likelihood of the petitioner either being released on bail or of his indulging in such activities if released on bail. It is thus apparent that the satisfaction recorded by District Baramulla is based on "no material" and in that view of the matter, the detention order passed by learned District Magistrate becomes unsustainable.
7. The District Magistrate has recorded his satisfaction on some records which are stated to have been supplied by Superintendent of Police to the District Magistrate. This record, as it so appears from the official records had not been provided to the detenue who was only read-over and explained the grounds of the detention.
8. Non-supply of grounds of detention and the material relied upon by the District Magistrate, to the detenue deprives the petitioner of his constitutional right to make an effective representation against his detention.
9. That apart I find the grounds of detention vague and ambiguous as date or month of alleged activities attributed to the detenue has not been mentioned in the grounds of detention.
10. For all what has been said above, it may be safely concluded that requisite material was not there on records on the basis whereof detention of the petitioner could be ordered under Section 8 of Jammu and Kashmir Public Safety Act 1978. Grounds of detention which were only read over but not supplied to the petitioner being vague and ambiguous have deprived the petitioner/detenue of his constitutional right under Article 22(5) to make an effective representation against his detention. The order of District Magistrate Baramulla is, therefore, violative of Section 8 and 13 of Jammu and Kashmir Public Safety Act.
11. The detention order thus becomes unsustainable. It is accordingly quashed.
12. Allowing the writ petition, I would accordingly direct the respondents to release the petitioner forthwith if not required in any case for the infraction of penal laws in force in the State.
13. Detention records shall be returned to the learned State counsel.