IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKHAT SRINAGAR
Reserved on: 14.03.2024
Pronounced on:29.03.2024
WP(Crl) No.418/2022
ZAHID HAMEED BHAT ...PETITIONER(S)
Through: - Mr. M. Ashraf Wani, Advocate, with
Mr. Sameer Qayoom, Advocate.
Vs.
UT OF J&K & ORS
…RESPONDENT(S)
Through: - Mr. Zahid Q. Noor, GA.
CORAM: RAJNESH OSWAL, JUDGE
HON’BLE MR. JUSTICE
JUDGMENT
1. Aggrieved of the order of detention bearing No.44/DMP/PSA/22
dated 18.06.2022 (herein after referred to as the impugned order ), the
‘ ’
petitioner has assailed the same through the medium of present writ
petition filed through his brother on the following grounds:
i) That the grounds of detention prepared by the respondent
No. 2 are vague and on such vague grounds, the petitioner
could not have been detained.
ii) That the detaining authority has recorded its satisfaction on
the basis of police dossier and connected documents but the
connected documents is a vague term and the documents
‘ ’
relied upon by the detaining authority have not been
provided to the petitioner.
iii) That the grounds of detention are verbatim reproduction of
the police dossier.
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iv) That the representation submitted by the petitioner was not
decided by the respondents.
2. Counter affidavit has been filed by the respondents stating therein
that the grounds of detention are not vague and the detaining authority
has passed the order of detention after recording its subjective
satisfaction in the matter. The grounds of detention, order of detention
and the entire material relied upon by the detaining authority were
provided to the petitioner. In compliance to the order of District
th
Magistrate, the warrant was executed on 20 June 2022 by Executing
Officer namely Sub Inspector Tariq Ahmad. The petitioner was handed
over to Superintendent Central Jail Kotbalwal Jammu for lodgment. The
contents of the detention order/warrant and the grounds of detention
were read over and explained to the petitioner in the language which he
understood and in acknowledgment thereof he appended his signatures
on the execution report/order. The detenue was informed of his right to
make representation but he never chose to do so. Simultaneously, it is
stated that the brother of the petitioner filed a representation against the
th
impugned order but the same was rejected on 15 July 2022 and a copy
of the same was forwarded to the Superintendent Central Jail,
Kotbalwal, Jammu for handing over it to the detenue.
3. Learned counsel for the petitioner while arguing reiterated the
grounds as noted above by this Court.
4. Per contra Mr. Zahid Q. Noor, learned GA submits that all the
constitutional as well as procedural safeguards have been complied with
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by the respondents not only at the time of issuance of order of detention
but also at the time of execution of the same. He has further submitted
that the relevant material relied upon by the detaining authority was
provided to the petitioner against proper receipt. He laid much stress on
the activities of the petitioner by stating that these activities were found
prejudicial to the maintenance of security of Union Territory of J&K
and taking into consideration the illegal activities of the petitioner, he
was ordered to be detained under the Act (supra).
5. Heard and perused the record.
6. A perusal of the record reveals that the respondent No. 3
submitted a dossier to respondent No. 2, recommending the detention of
the petitioner under the Public Safety Act. Perusal of the grounds of
detention and the dossier reveals that the petitioner has been alleged to
be the conduit of banned terrorist organization and he has been alleged
to be aiding and abetting the terrorist activities carried out by the banned
terrorist organization in and around Pulwama Town. The allegations
have been leveled against the petitioner for harboring the terrorists of
HM Outfit at different locations and motivating and instigating the youth
of the area into anti-national activities. It is further urged that the
petitioner is a hardcore fundamentalist and sympathizer of terrorists and
has been providing logistic support to the terrorist as Over Ground
Worker (OGW) of a banned terrorist organization. It is further alleged
that he was close friend of two militants who got killed in separate
encounters.
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7. The contents of the dossier as well as grounds of detention are
vague, bereft of specific details, as no date, month and year of any
alleged illegal activity of the petitioner has been mentioned. The general
allegations without mentioning the specific incidents and that too
without date, month and year has in fact incapacitated the petitioner to
make an effective representation. The vagueness of the grounds of
detention in itself is a ground for quashing the order of detention.
Reliance is placed upon the judgments of
of the Hon’ble Supreme Court
India in
Jahangir khan Fazal Khan Pathan vs. Police
and
Commissioner, Ahmadabad, (1989) 3 SCC 590 Piyush
Kantilal Mehta vs. The Commissioner of Police, Ahmedabad
City and Ors. 1989 (1) Crimes 176 (SC).
8. Further this Court finds that in the order of detention, it has been
mentioned that the detaining authority has relied upon the dossier and
s
other “connected documents”. The detail of those “connected
s of detention nor this
documents” are neither mentioned in the ground
Court has been able to find s
any such “connected document ” in the
record produced by the respondents. It means that the petitioner No.2 has
relied upon certain documents which were never supplied to the
petitioner. It is settled law that the material relied upon by the detaining
authority is required to be supplied to the detenue and absence of the
other connected documents in the record produced by respondent
demonstrates that respondent No. 2 has acted in a mechanical manner as
once there were no connected documents before the detaining authority
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i.e. respondent No. 2, the respondent No. 2 ought not to have mentioned
the same in the order of detention. On this ground also the impugned
order deserves to be quashed.
9. The order impugned is not sustainable on yet another ground that
the petitioner was not communicated about the rejection of the
representation submitted by his brother. The stand of the respondents is
that the representation filed by the brother of the petitioner was rejected
on 15.07.2022 and the rejection order was forwarded to the
Superintendent of the concerned jail, for further handing over the same
to the petitioner. There is nothing in the record submitted by the
petitioner that the petitioner was served with the order of rejection of the
representation. Reliance is placed upon
the decision of the Hon’ble
Supreme Court of India in Sarabjeet Singh Mokha v. DM, Jabalpur,
(2021) 20 SCC 98 (para-56).
10. In view of the above, this Court is of the considered view that the
order of detention bearing No.44/DMP/PSA/22 dated 18.06.2022 is not
sustainable in the eyes of law. Accordingly the same is quashed. The
petitioner is directed to be released from the custody provided he is not
involved in any other case.
(Rajnesh Oswal)
Judge
SRINAGAR
29.03.2024
Aasif
Whether the judgment is reportable: Yes/No