Jammu & Kashmir High Court – Srinagar Bench
Mohammad Umar Malik vs Union Territory Of J And K And Ors on 6 February, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S. No. 2
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP 37/2023
MOHAMMAD UMAR MALIK ...Petitioner(s)
Through: Mr. Aabid Hamid Pandit, Advocate.
Vs.
UNION TERRITORY OF J AND K AND ORS ...Respondent(s)
Through: Mr. Hakim Aman Ali, Dy.AG.
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
06.02.2025
(ORAL)
1. The petitioner in the instant petition filed under Article 226 of the
Constitution has challenged a detention order No. 48/DMP/PSA/23
dated 04.08.2023, (for short the impugned order) passed by
respondent 2, (for short the detaining authority) under and in terms of
the provisions of the Jammu and Kashmir Public Safety Act, 1978 (for
short the Act of 1978).
2. The impugned order has been challenged by the petitioner herein on
multiple grounds urged in the petition.
3. Counter-affidavit has been filed to the petition wherein the petition
is being opposed, inter-alia, on the premise that the petitioner came to
be detained under the provisions of the Act of 1978, validly and
legally, after fulfilling all statutory requirements and complying with
the Constitutional guarantees inasmuch as, upon deriving of
subjective satisfaction by the detaining authority, whereafter the
grounds of detention, order of detention, as also the entire material
relied upon by the detaining authority, was furnished to the petitioner
within the statutory period which grounds of detention and order of
detention, was read over and explained to the petitioner in the
language he understood and also came to be informed about his right
of making a representation against his detention.
1
Heard counsel for the parties as perused the record.
4. Counsel for the petitioner while making his submissions would
contend that the detaining authority has failed to follow the mandate
of law in drawing and framing the grounds of detention, as in the
grounds of detention, no names and particulars of the persons who
were allegedly lured by the petitioner to join terrorist ranks or else the
details of the activities alleged against the petitioner for aiding and
abetting the terrorist activities in and around Kakapora Warpora, area
have been spelt out in the grounds of detention and that on account of
the said failure of the detaining authority, the petitioner has been
rendered incapable of making an effective representation against his
detention.
According to the counsel for the petitioner, the detaining
authority also did not indicate any compelling reasons either in the
grounds of detention or in the order of detention, warranting the
preventive detention of the petitioner while referring to the bounding
down of the petitioner by the Executive Magistrate 1st Class under
Section 107/151 CrPC inasmuch as the detaining authority has failed
to indicate any activities attributable to the petitioner post his alleged
bounding down by the Executive Magistrate 1st Class which would
have necessitated the preventive detention of the petitioner.
5. On the contrary, the counsel for the respondents, while opposing the
submission of the counsel for the petitioner, would reiterate the stand
taken by the respondents in the counter affidavit filed to the petition
and would pray for dismissal of the petition.
6. Insofar as the aforesaid first submission of the counsel for the
petitioner is concerned, law is no more res-integra and stands settled
that the detaining authority, while framing grounds of detention, has
to detail out all the activities specifically in explicit terms attributable
to the petitioner constituting a case for invoking the provisions of the
Act of 1978. This Court in case titled as “Nisar Ahmed Khan v.
State of J&K and others” reported in 2011 to JKJ 243 has inter alia
held that the detaining authority has not to work on assumptions and
presumptions while framing the grounds of detention as the grounds
2
of detention constitute a basis for passing a detention order and, as
such, the grounds of detention should not be ambiguous, vague or
uncertain or unreasoned which a person ordinarily would not be in a
position to understand.
7. Record available on the file inasmuch as produced by the counsel for
the respondents manifestly tends to show that the detaining authority
indisputably has failed to detail out the activities attributable to the
petitioner with specific names, particulars and dates necessitating the
detention of the petitioner. Under these circumstances, it can safely be
said that the petitioner owing to the aforesaid inaction of the detaining
authority has been rendered incapable of making an effective
representation against his detention, which in essence is violation of
Constitutional right contained under Article 2(5) of the Constitution.
8. Insofar as the aforesaid next submission of counsel for the petitioner
is concerned, perusal of the record would reveal that the Police
Station, Rajpora, admittedly has furnished a report to the Executive
Magistrate, 1st Class, dated 20th of July, 2023, requiring the
Magistrate to proceed against the petitioner in terms of section
107/151 CrPC while detailing out his alleged involvement/association
with the terrorists, however, it is not forthcoming from the record that
the petitioner was ever bound down by the Executive Magistrate in
terms of Section 107/151 CrPC. Under these circumstances, the only
inescapable conclusion that could be drawn is that the detaining
authority has shown its complete non-application of mind while
providing in the grounds of detention that the petitioner was bound
down by the Executive Magistrate, 1st Class, under Section 107/151
CrPC.
9. It is significant to mention here that the fact of non-application of
mind on the part of the detaining authority is also evident from the last
para of grounds of detention wherein the detaining authority has
provided “that the activities as projected in the forgoing paras of the
instant dossier run heavily against you and are highly prejudicial to
the security of the State”. The detaining authority indisputably has
remained oblivious to the fact that it is framing the grounds of
detention and not the dossier.
3
10. Viewed thus for what has been observed, considered, and analyzed
hereinabove, impugned order No. 48/DMP/PSA/23 dated 04.08.2023
is not legally sustainable and is accordingly quashed with the direction
to the respondents, including the concerned jail authority, to release
the petitioner forthwith unless he is not required in any other case.
11. Detention records produced by counsel for the respondents is returned
back in the open court.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
06.02.2025
Ishaq
Whether the order is speaking? Yes/No
Whether approved for reporting ? Yes/No
4
[ad_1]
Source link