S. No.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 333/2022
Reserved On: 19.02.2024
Announced On:29.02.2024
Umar Aijaz Mir
…Petitioner(s)
Through: Mr. B. A. Tak, Advocate.
Vs.
UT of J&K and Anr. ...Respondent(s)
Through: Mr. Ilyas Nazir Laway, GA.
CORAM:
MR JUSTICE RAHUL BHARTI, JUDGE
HON’BLE
JUDGEMENT
1. Heard learned counsel for the petitioner as well as for the respondents
and perused the pleadings documents therewith and also the detention
record produced concerning the petitioner.
2. Through this petition under article 226 of the Constitution of India, the
petitioner, acting through his father Aijaz Ahmad Mir, is seeking
quashment of his preventive detention by issuance of a writ of Habeas
Corpus and thereby earn his release from the detention custody.
3. The petitioner is 27 years of age against whom the Sr. Superintendent
of Police, Bandipora came to prepare frame and submit a dossier No.
Lgl/PSA-29/2022/14463-70 dated 10.05.2022 thereby seeking the
District Magistrate Bandipora-respondent No. 2, to subject the
petitioner to preventive detention so as to prevent the petitioner from
acting in any manner prejudicial to the security of the State warranting
his detention under the Jammu and Kashmir Public Safety Act, 1978.
4. Acting upon the said dossier of the Sr. Superintendent of Police
Bandipora, the respondent No. 2-the District Magistrate Bandipora
came to act in purported exercise of his powers under clause (a) of
Section 8 of the J&K Public Safety Act, 1978 to pass an order No.
14/DMB/PSA of 2022 dated 19.05.2022 thereby holding the petitioner
liable for preventive detention to prevent him from acting in any
manner prejudicial to the security of the State and to be arrested,
detained and lodged in the Central Jail Kot Bhalwal Jammu.
5. This order of detention came to be passed by the respondent No. 2-the
District Magistrate Bandipora by framing grounds of detention upon
the basis of which the respondent No. 2-the District Magistrate
Bandipora came to draw his subjective satisfaction that alleged activity
of the petitioner called for his detention.
6. In the grounds of detention as framed by the respondent No. 2-the
District Magistrate Bandipora the petitioner is referred to be inclined
towards pelting of stones towards the police/law enforcing agency
during the period of 2016 for ulterior motive to receive gains of hefty
sums from the high profiled secessionist elements in order to create
chaotic atmosphere in Bandipora area. The petitioner was attributed to
have criminal bent of mind which is quite evident from his conduct
over a period of time playing an active/key role along with his associate
for instigating the youth and organizing the violent mobs in order to
disturb and destabilize the peaceful area of Bandipra town and its
adjacent areas. The petitioner is alleged to have developed close
contacts and intimacy with organized stone pelters and other like
elements in Bandiproa town.
7. In order to show case the petitioner in the aforesaid light in the grounds
of detention, the respondent No. 2-the District Magistrate Bandipora
has drawn reference from:
FIR no. 86 Police Station, Bandipora for alleging commission of
offences under section 148/ 149/336/332/357/427 and 152 Rambir
Penal Code;
FIR No. 119 of 2016 Police Station Bandipora under sections 148,
149,336, 332, 353, 427 of Rambir Penal Code.
FIR No. 132 of 2016 Police Station Bandipora under sections 147, 148,
149, 332, 336, 353, of Rambir Penal Code.
FIR No. 113 of 2016 Police Station Bandipora under sections 148, 149,
336, 353, 188, 307 of Rambir Penal Code.
FIR No. 135 of 2016 Police Station Bandipora under sections 147, 148,
149, 332, 336, 353 of Rambir Penal Code.
FIR No. 137 of 2016 Police Station Bandipora under sections 147, 148,
149, 332, 336, 353, 427 of Rambir Penal Code.
FIR No. 139 of 2016 of Police Station Bandipora, under sections 147,
148, 332, 336, 427 of Rambir Penal Code, 13 ULA(P)
8. By reference to all these aforesaid FIRs of 2016, the petitioner lastly is
alleged to have been booked under FIR No. 67/2022 under section 13
of Unlawful Activities (Prevention) Act, 1967 and section 4-B
Explosive Substance Act registered with the Police Station Bandipora
pursuant to an incident of 20.04.2022 when the petitioner upon being
intercepted while riding a Scooty JK15-5762 was found to have one
grenade allegedly recovered from his Scooty leading to registration of
said offences.
9. The petitioner is attributed with bad description about his personality
having a fundamentalist ideology, sympathisizer of terrorism and
providing of logistic support to the militants, working as OGW of
Lashkar-e-toiba maintaining close association with local terrorist
namely Jameel Sheer Gojari and Hashir Rafiq Parray.
10. The aforesaid preventive detention of the petitioner came to be
confirmed by the Government and his representation made against his
detention earning him no reprieve in which the petitioner had denied
the allegations and his characterization as made in the grounds of
detention.
11. Respondents in their reply have stated the confirmation of the detention
of the petitioner by virtue of Government order No. Home/PB-V/1310
of 2022 dated 20.06.2022 about the petitioner coming to be detained on
21.05.2022 and subjected to preventive detention for a period of two
years which is going to expire by coming month of May 2024. In the
reply affidavit it is submitted that in all the FIRs referred in the grounds
of detention the petitioner came to be released on bail.
12. In support of the submissions made by learned counsel for the
petitioner seeking quashment of detention order of the petitioner, the
learned counsel for the petitioner submits that all the FIRs except the
last FIR of 2022 in which the petitioner after getting arrested and
challaned came to be enlarged on bail subject to the terms and
conditions which at no point of time the petitioner ever breached and
that is the reason that in none of the case the prosecution never
complained that the petitioner is abusing the bail liberty granted in his
favour. By reference to the alleged involvement of the petitioner in the
last FIR referred in the grounds of detention which being the FIR No.
67/2022 registered with Police Station Bandipora which actually
precipitated the preventive detention jurisdiction against the petitioner,
the learned counsel for the petitioner refers to the fact that in this FIR
Police roped number of persons including the petitioner and one of the
said accused is Javid Iqbal Khan against whom the District Magistrate
Bandipora came forward with the detention order No. 16/DMB/PSA of
2022 dated 19.05.2022 by proceeding on the same premise as against
the petitioner.
13. Said Javid Iqbal Khan, the detenue in detention order No.
16/DMB/PSA of 2022 dated 19.05.2022, came to question his
preventive detention in writ petition no. WP (Crl) No. 345/2022 before
this court which came to be quashed by virtue of the judgement dated
13.10.2023 and that the fate of the preventive detention
petitioner’s
cannot be different to the one as came to be in favour of Javid Iqbal
Khan by reference to his implication in FIR No. 61/2022 which is the
case against the petitioner as well.
14. Perusal of the grounds of detention would show that it is only in the
year 2016 the petitioner came to be implicated in all the FIRs and
consequently challaned but at no point of time the law enforcement
agency ever reckoned the state of things attending the petitioner of his
involvement in 2016 FIRs to be sufficient enough to prompt his
detention order under Public Safety Act 1978 and that is the reason that
from 2017 till 2022 the petitioner is attributed with no act of omission
or commission to land him in the clutches of law and enforcement
agency. Therefore, the submission of learned counsel for the petitioner
that the purported premise of 2016 registered FIRs cannot be taken to
be have a live nexus against the petitioner warranting his preventive
detention except the implication of the petitioner in FIR no. 67/2022.
15. The learned counsel for the petitioner urges this court to consider the
legality of the petitioner s detention in the context of implication in the
’
FIR no. 67/2022 and extend parity treatment as given to co-accused
Javid Iqbal Khan also detained by reference to said FIR no. 67/2022 the
plea of the learned counsel for the petitioner carries weight and this
court can very safely say that the implication of the petitioner in the
FIRs of 2016 could not have lend a live basis to the respondent No. 2-
the District Magistrate Bandipora to subject the petitioner to preventive
detention and thereby it is only petitioner
’s alleged involvement in FIR
No. 67/2022 that actually resulted in inviting a dossier against the
petitioner from the SSP Bandipora to seek the preventive detention of
the petitioner and the District Magistrate Bandipora came forward with
detention order No. 14/DMB/PSA of 2022 dated 19.05.2022 on the
same date when the detention order No. No. 16/DMB/PSA of 2022
dated 19.05.2022 against Javid Iqbal Khan came to be passed and
eventually getting quashed by judgement dated 13.10.2023 of this
court.
16. The perusal of the judgment dated 13.10.2023 of this court reveals that
it bears the reasoning on the basis of which the detention order of Javid
Iqbal Khan has been quashed and same applies with equal persuasion in
the case of the petitioner as such, the petit is also held
ioner’s detention
to be misconceived and not warranted and deserves quashment.
17. Accordingly this court holds the preventive detention order No.
14/DMB/PSA of 2022 dated 19.05.2022 of the District Magistrate
Bandipora read with consequent orders of confirmation passed by the
Government UT of Jammu and Kashmir with respect to the petitioner
illegal and accordingly directs the release of person of the petitioner
from detention and detainment from the Central Jail Kot Bhalwal
Jammu or any other jail wherever the petitioner may be lodged
pursuant to the detention order hereby quashed.
(RAHUL BHARTI)
JUDGE
SRINAGAR
29.02.2024
Ishaq