Jammu & Kashmir High Court - Srinagar Bench
Yawar Ahmad Malik vs Ut Of J&K And Others on 29 August, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
,
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on:09.08.2023
Pronounced on: 29.08.2023
WP(Crl) No.405/2022
YAWAR AHMAD MALIK
... Petitioner(s)
Through: -Mr.Asif Nabi, Advocate.
Vs.
UT OF J&K AND OTHERS
...Respondent(s)
Through: -Mr. Mohammad Younis, Advocate vice
Mr. Mubashir Majid Malik, Dy.AG
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner has challenged Order No.44/DMK/PSA/2022 dated 25.06.2022, passed by respondent No.2, District Magistrate Kulgam, whereby the petitioner has been taken into preventive custody in order to prevent him from acting in any manner prejudicial to the security of the State.
2. The petitioner has challenged the impugned order of detention on the grounds that the allegations made in the grounds of detention are vague on the basis of which no prudent man can make an effective representation against these allegations. It has been further contended that the detenue is a peace loving citizen and is not affiliated with any terrorist organization but he has been unnecessarily subjected to preventive detention. It is also contended WP(Crl) No.405 of 2022 page 1 of 6 that the grounds of detention appear to be xerox copy of police dossier and the same clearly depict that there is non-application of mind on part of the detaining authority. It has been further contended that the petitioner has not been provided whole of the material on the basis of which the grounds of detention have been formulated and that this has caused grave prejudice to the petitioner, as he could not make an effective representation against the impugned order of detention. It is also contended that the petitioner is 12th Pass and he understands only Urdu and Kashmiri languages, but the grounds of detention are in English in hyper technical language and in the absence of translated script of the same the petitioner could not understand the grounds of detention, thereby hampering him from making an effective representation against the order of detention. It is further contended that the petitioner had already been booked in an FIR and there was no hope of his getting out of custody, as such there were no compelling circumstances for the respondents to pass the impugned order of detention. Lastly, it has been contended that the impugned order of detention has been passed on the basis of stale incidents.
3. The respondents have contested the writ petition by filing their counter affidavit. In their counter affidavit it has been submitted that all the legal and statutory safeguards available to the petitioner have been adhered to by the respondents before passing the impugned order of detention. It has been further submitted that the whole of the material, which formed basis for the order of detention, was WP(Crl) No.405 of 2022 page 2 of 6 furnished to the petitioner and he was afforded opportunity to file a representation against the order of detention, which he did not avail. It has also been submitted that the grounds of detention are specific and there is no vagueness in the same. According to the respondents the activities of the petitioner were highly prejudicial to the security of the State and, as such, the detaining authority was justified in passing the impugned order of detention. The respondents have produced detention record in support of their contentions.
4. I have heard learned counsel for the parties and perused the record, including the detention record.
5. The contention of the petitioner that he was not provided the whole of the material, on the basis of which the grounds of detention were formulated, appears to be without merit for the reason that the detention record shows that the petitioner has been provided copies of detention order, notice of detention, grounds of detention, dossier of detention and copies of FIR etc. In the grounds of detention there is mention of one FIR i.e FIR No.54 of 2018 of Police Station Qaimoh. Copy of the same seems to have been received by the petitioner as is clear from the receipt executed by him. Therefore, it cannot be stated that the petitioner has not been provided the material on the basis of which grounds of detention have been formulated.
6. So far as the contention of the petitioner that he was not provided the translated version of the grounds of detention is concerned, the same also appears to be without merit for the reason WP(Crl) No.405 of 2022 page 3 of 6 that the petitioner as per his own case has acquired the qualification of 10+2. A person who has qualified 10+2 is expected to read, write and understand the English language. Therefore, it cannot be stated that the petitioner did not understand the contents of the grounds of detention which have been formulated in simple English language.
7. It has been contended by the learned counsel for the petitioner that the allegations made in the grounds of detention against the petitioner are vague and that the grounds of detention are xerox copy of the Police dossier. If we have a look at the grounds of detention, the detaining authority, after giving the background of the petitioner by making a reference to the incident which is subject matter of FIR No.54 of 2018 of Police Station Qaimoh, has clearly stated that as per the intelligence reports the petitioner is an associate of LeT outfit. So there is a specific allegation against the petitioner that he is a member of banned organization LeT which is notorious for its activities against the State, the minority communities, non locals and the security personnel. Therefore, there is no ambiguity in the grounds of detention formulated against the petitioner. Having regard to the facts narrated in the grounds of detention, the detaining authority was well within its jurisdiction to record subjective satisfaction that detention of the petitioner is necessary for preventing him from acting in a manner prejudicial to the security of the State.
8. The grounds of detention and the police dossier are not in the same language as has been contended by the petitioner. It cannot be WP(Crl) No.405 of 2022 page 4 of 6 stated that these two documents are identical in nature. The detaining authority has, after narrating the inputs contained in the police dossier, clearly applied its mind and recorded its satisfaction that the activities of the petitioner are prejudicial to the security of the State. The contention of the learned counsel for the petitioner in this regard is without any merit.
9. That takes us to the contention of the petitioner that the impugned order of detention is based upon stale activities. In this regard learned counsel for the petitioner has submitted that in the grounds of detention incident of 1st August 2018 is mentioned and the same has been made basis of detention of the petitioner. The argument of learned counsel for the petitioner is misconceived because while formulating the grounds of detention the detaining authority has made reference to the incident of 2018 only to give a glimpse of activities in which the petitioner has indulged. The main ground on the basis of which the petitioner has been subjected to preventive detention is that he is a member of banned outfit LeT and this is an event which has taken place after the incident of 1st August, 2018 and is based on recent intelligence reports. Therefore, it cannot be stated that the impugned order of detention is based on stale activities.
10. Lastly, it has been contended that the petitioner was already booked in a substantive offence, as such, there was no need to pass the impugned order of detention. If we have a look at the grounds of detention it is indicated therein that the petitioner was booked in FIR WP(Crl) No.405 of 2022 page 5 of 6 No. 54 of 2018 for offences under Section 147, 148, 149, 336 RPC of Police Station Qaimoh. According to learned counsel for the petitioner there was no possibility of the petitioner getting bail in this case. The argument of learned counsel for the petitioner is without any merit, for the reason that all the aforenoted offences are bailable in nature. Therefore, it cannot be stated that there was no possibility of the petitioner getting bail in these offences. In fact, the petitioner was not in custody when the impugned order of detention was passed. Thus the detaining authority was well within its jurisdiction to pass the impugned order of detention once it found that the activities of the petitioner are prejudicial to the security of the State.
11. For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.
12. Record be returned to learned counsel for the respondents.
(SANJAY DHAR) JUDGE SRINAGAR 29.08.2023 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes WP(Crl) No.405 of 2022 page 6 of 6