Rameez Ahmad Malla vs Union Territory Of J&K And Ors
2021 Latest Caselaw 606 j&K/2

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       HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
                                        (Through V.M)

                     Case no. ([WP Cri) No. 46/2020

                                                  Reserved on 29th May 2021
                                                  Pronounced on 31.06.21

Rameez Ahmad Malla
                                              ... Petitioner
                            Through:          Mr. Wajid Haseeb, adv.
                            vs.
Union Territory of J&K and ors
                                              .....Respondents.
                            Through :         Mr. B.A Dar, Sr. AAG

Coram:        Hon'ble Mr. Justice Ali Mohammad Magrey.
                                  JUDGMENT

1. Detenu, Rameez Ahmad Malla, son of Abdul Majeed Malla resident of Wattergam Rafiabad, District Baramulla through his father seeks quashment of detention order no. 83/DMB/PSA/2020 dated 14.02.2020 purporting to have been passed by District Magistrate, Baramulla, with consequent prayer for release of the detenu forthwith.

2. Before adverting to the grounds of challenge taken by the petitioner to assail the impugned order, it would be appropriate to briefly 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 detenu-petitioner is 9th standard student after passing the exam and was shopkeeper by profession. During the month of May 2019 the detenu developed the contacts with one foreign militant @ Maz Bahi of Hizbul Majahideen out fit and started providing all sorts of assistance to the said foreign militant. The detenu provided food and shelter to the said militant in other houses of area. The detenu got motivated by said militant to work with the said outfit as OGW of Hizbul Mujhideen. The detenu 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.

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 petitionerunder 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 14th 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 memos etc. etc. which have been relied upon in the grounds of detention, was never supplied to the detenu 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 detenu

on the ground that the activities in which the detenu was indulged

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 detenu 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 detenu has filed rejoinder affidavit and has

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

detaining authority, he was already admitted to bail vide order

dated 26th of February, 2020, whereas the detaining authority, in

the grounds of 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

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

of detaining authority. The detenu 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 detenu-petitioner was released on bail by the competent

court of jurisdiction on 26th of February, 2019, but instead of

releasing he was detained under Public Safety Act, interestingly,

did not bring the factum of detenu 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 detenu 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 detenu, if

released on bail, would again indulge in subversive activities.

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 detenu 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 position, this petition is allowed and

the impugned order of detention 83/DMB/PSA/2020 dated

14.02.2020 is quashed. The Detenu, Rameez Ahmad Malla, son

of Abdul Majeed Malla resident of Wattergam Rafiabad, District

Baramulla is directed to be released from preventive custody

forthwith. No order as to costs.

12. Registrar Judicial to send a copy of this order to Principal Secretary to Director General of Prisons and also concerned Jail authorities for compliance by the mode available.

Disposed of.

(Ali Mohammad Magrey) Judge Srinagar, 31.05.2021 Syed Ayaz Hussain, Secretary

i) Whether order is speaking: Yes/No.

                                 ii)         Whether order is reportable: Yes/No.




SYED AYAZ HUSSAIN
2021.05.31 11:57
I attest to the accuracy and
integrity of this document