Riyaz Khaliq Parray vs Ut Of J&K & Another
2021 Latest Caselaw 490 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                              (THROUGH VIRTUAL MODE)

                                                                       Reserved on: 15.04.2021
                                                                     Pronounced on:27 .04.2021

                                                 WP(Crl) No.45/2020

                      RIYAZ KHALIQ PARRAY                                   ...PETITIONER(S)
                                          Through: - Mr. Wajid Haseeb, Advocate.

                      Vs.

                      UT OF J&K & ANOTHER                                 ...RESPONDENT(S)
                                          Through: - Ms. Asifa Padroo, AAG.

                      CORAM:        HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.

                                                         JUDGMENT

1) Impugned in this petition is an order of detention passed by

District Magistrate, Baramulla, (the detaining authority), vide his order

No.85/DMB/PSA/2020 dated 17.02.2020 (the impugned order), whereby

petitioner has been detained in preventive detention with a view to

preventing him from indulging in the activities which are prejudicial to

the security of Union Territory. The impugned order has been passed by

the detaining authority on the basis of material supplied by Senior

Superintendent of Police, Sopore, vide his communication

No.Pross/PSA/2020/5558 dated 14.02.2020. The petitioner, who has

filed this petition through is father, is aggrieved of the impugned order of

detention and has challenged the same on several grounds.

2) Before adverting to the grounds of challenge taken by the MOHAMMAD ALTAF BHAT 2021.04.27 16:08 petitioner to assail the impugned order, it would be appropriate to briefly I attest to the accuracy and integrity of this document

notice the grounds of detention on the basis of which the preventive

detention of the petitioner has been ordered.

3) As per the dossier supplied by the police, the petitioner is 12 th pass

and was initially engaged in fruit business to augment his family income.

During the month of July, 2019, the petitioner developed his contacts

with one Over Ground Worker of Hizbul Mujahideen, namely, Rameez

Ahmad Malla and through him he met one foreign militant known by the

name of Maz Bahi and got motivated to provide all sorts of assistance to

the militants of banned outfit Hizbul Mujahideen. The petitioner was

instrumental in strengthening militancy network in the area of Rafiabad.

For his involvement in the activities, the petitioner was apprehended on

07.11.2019 in connection with case FIR No.161/2019 under Sections 18,

39 of ULA(P) Act and 7/25 Arms Act registered in Police Station,

Dangiwacha, which is under investigation. The dossier as also the

grounds of detention narrates whole sequence of events leading to the

involvement of the petitioner in the aforesaid FIR. The detaining

authority, on the basis of dossier of activities supplied by the police and

after going through the allegations contained in FIR No.161/2019,

arrived at satisfaction that the petitioner though under judicial remand in

case FIR No.161/2019, would, in every likelihood, indulge in subversive

activities if he is admitted to bail by the Court and, therefore, it was

imperative to put him under preventive detention. It is in the aforesaid

backdrop, the impugned order of detention is passed by the detaining

authority.

MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

4) The petitioner has assailed the impugned order of detention, inter

alia, on the following grounds:

(I) That the allegations in the grounds of detention are vague

and indefinite and no prudent man can make an effective

representation against these allegations;

(II) That at the time of passing of the detention order, the

detenue was already in custody in FIR No.161/2019 and he

had neither applied for bail nor bail was otherwise due to

him, particularly in view of the fact that the offences

alleged against him were covered under Section 43D of

ULA(P) Act. The detaining authority despite having

knowledge of the custody of the detenue has not spelled out

any justified and compelling reasons to detain the petitioner

under preventive detention;

(III) That the detention order has been based on single alleged

activity which as per the respondents occurred on

07.09.2019 and the detention order has been passed on 17th

of February, 2020 i.e. after a delay of more than three

months and, therefore, in the absence of any explanation

with regard to delay, the detention order is vitiated and

cannot sustain;

(IV) That the relevant material, like copy of dossier, FIR,

statements under Section 161 and 164-A Cr. P. C, seizure

MOHAMMAD ALTAF BHAT memos etc. etc. which have been relied upon in the grounds 2021.04.27 16:08 I attest to the accuracy and integrity of this document

of detention, was never supplied to the detenue to enable

him to make an effective representation nor he was made

aware of his right to make representation against his

detention to the detaining authority or the government.

5) Learned counsel for the petitioner has reiterated the aforesaid

grounds while addressing his arguments.

6) On being put on notice, the detaining authority has filed a detailed

reply affidavit and has justified the detention of the petitioner on the

ground that the activities indulged in by the petitioner are highly

prejudicial to the security of the Union Territory and, therefore, his

remaining at large is a threat to the security of Union Territory. The

activities narrated in the grounds of detention have been reiterated in the

reply affidavit filed by the detaining authority. The factual averments

that the petitioner was not supplied with the relevant material relied upon

in the grounds of detention have been refuted. It is submitted that all the

relevant material, which has been relied upon by the detaining authority,

was provided to the petitioner at the time of execution of warrant and

that the petitioner never made any representation either to the detaining

authority or to the government.

7) To counter the stand of the detaining authority projected in the

reply affidavit, the petitioner has filed rejoinder affidavit and has pleaded

that on the date when detention order was passed by the detaining

authority, the petitioner was already admitted to bail vide order dated 6 th

of February, 2020, whereas the detaining authority, in the grounds of MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

detention, has indicated that there is every likelihood of the petitioner

being admitted to bail. It is, thus, submitted that the impugned order of

detention is vitiated for total non-application of mind on the part of

detaining authority.

8) Having heard learned counsel for the parties and perused the

record, I find substance in the submission of learned counsel for the

petitioner that there is non-application of mind on the part of detaining

authority. The petitioner has been detained under preventive detention

for his alleged involvement in subversive activities which led to the

registration of FIR No.161/2019 under Sections 18, 39 of ULA(P) Act

and 7/25 Arms Act. In the aforesaid FIR, the petitioner was released on

bail by Special Judge (Designated Court), under NIA Act, Srinagar, on

6th of February, 2020, whereas Superintendent of Police, who forwarded

the relevant record including dossier and other connected documents to

the detaining authority vide his communication dated 14 th of February,

2020, interestingly, did not bring the factum of petitioner having been

released on bail in FIR No.161/2019, to the notice of detaining authority.

It is because of this omission on the part of Senior Superintendent of

Police, the detaining authority has categorically stated in the grounds of

the detention that the detenue was under judicial remand and that there

was every likelihood of his being admitted to bail. The detaining

authority has also noted that there was well-founded apprehension based

on report received from field information that the petitioner, if released

on bail, would again indulge in subversive activities.

MOHAMMAD ALTAF BHAT 2021.04.27 16:08 I attest to the accuracy and integrity of this document

9) In view of aforesaid, it is clear that either there is lapse on the part

of police to provide all relevant material to the detaining authority or

there is lack of application of mind on the part of detaining authority.

The fact, however, remains that at the time of passing of the detention

order, the detaining authority was not aware whether the detenue was in

police/judicial custody or he stood released on bail. It is difficult for me

to say as to what impact it would have made on the satisfaction of the

detaining authority but it cannot be denied that it was a relevant

information that was required to be produced before the detaining

authority to enable it to derive subjective satisfaction with regard to

necessity of placing the petitioner under preventive detention.

10) The non-application of mind by the detaining authority is fatal and

goes to the root of the detention and, therefore, is sufficient to vitiate the

impugned order of detention. For that reason, there is hardly any

necessity to consider other grounds of challenge urged by the learned

counsel for the petitioner.

11) In view of the aforesaid, this petition is allowed and the impugned

order of detention is quashed. Direction is issued to the respondents to

release the detenue from the preventive custody forthwith, provided he is

not required in connection with any other case.

(Sanjeev Kumar) Judge Srinagar 27.04.2021 "Bhat Altaf, PS"

                                         Whether the order is speaking:          Yes/No
MOHAMMAD ALTAF BHAT
2021.04.27 16:08
                                         Whether the order is reportable:        Yes/No
I attest to the accuracy and
integrity of this document