Mohammad Aslam Sheikh vs Ut Of J&K And Anr
2022 Latest Caselaw 4 j&K/2

        IN THE HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR

                                                Reserved on: 29.01.2021
                                                Pronounced on:27.01.2022

                         WP(Crl.) No.192/2020

MOHAMMAD ASLAM SHEIKH                              ...Petitioner(s)

            Through: - Mr. Wajid Haseeb, Advocate
Vs.

UT OF J&K AND ANR.                                    ...Respondent(s)

            Through: - Mr. Usman Gani, GA, vice
                       Mr. Irfan Andleeb, Dy. AG.


CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1) By the medium of this petition, veracity and validity of the order

of detention bearing No.DMB/PSA/20 of 2020 dated 11.11.2020, issued

by District Magistrate, Budgam (for brevity "Detaining Authority"), has

been assailed. In terms of the impugned order, Shri Mohammad Aslam

Sheikh son of Abdul Salam Sheikh resident of Gudpora Yarikah

Khansahib, Budgam, has been placed under preventive detention and

lodged in District Jail, Amphala J&K, Jammu.

2) Petitioner has contended that the Detaining Authority has passed

the impugned detention order mechanically without application of mind.

It has been further contended that the Constitutional and Statutory

procedural safeguards have not been complied with in the instant case. It

has also been urged that the allegations made against the detenue in the

grounds of detention are vague and that the translated version of the

documents/grounds of detention has not been provided to the detenue

who is a semi-literate person. Petitioner has gone to contend that he has

not been informed as to before which authority he had to make a

representation.

3) The respondents, in their counter affidavit, have disputed the

averments made in the petition and stated that they have followed the

provisions of J&K Public Safety Act. It is contended that the detenue has

been detained only after following due procedure; that the grounds of

detention were read over to the detenue; that there has been proper

application of mind on the part of the Detaining Authority while passing

the impugned order and that the detenue has been provided all the

material. The learned counsel for the respondents also produced the

detention records to lend support to the stand taken in the counter

affidavit.

4) I have heard learned counsel for parties and I have also gone

through detention record.

5) Learned counsel for the petitioner highlighted various

grounds while seeking quashment of impugned order but the main

groundthat hasbeen argued during the course of arguments is that the

detenue wasalready in custody in case FIR No.86/2020 for offences

under Sections18, 20, 23, 38, 39 of ULA(P) Act and 7/25 Arms Act of

Police Station, Khansahib, and there were no compelling reasons for the

Detaining Authority to make the impugned detention order and that the

Detaining Authority has not spelt out the compelling reasons for

detaining the detenue under preventive laws.

6) It is a settled position of lawthat preventive detention orders can

be passed even when a person is in police/judicial custody or involved in

a criminal case but for doing so, compelling reasons are to be recorded.

The Detaining Authority is bound to record the compelling reasons as to

why the detenue could not be deterred from indulging in subversive

activities by resorting to normal law.In the absence of these reasons, the

order of detention becomes unsustainable in law. I am supported in my

aforesaid view by the judgments of the Supreme Court in the cases of

Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri)

1691,T. P. Moideen Koya vs. Government of Kerala and ors."2004 (8)

SCC 106 and Sama Aruna v. State of Telangana & Anr(AIR 2017 SC

7) Coming to the facts of instant case, in the grounds of detention,

after referring to the allegations made in the FIR, it has been mentioned

that these activities of the detenue are prejudicial to the security of State

that have a potential of destabilizing the country in case the detenue is

allowed to remain at large. However, the Detaining Authority has not

referred to any other cogent material or furnished any other cogent

ground to show that if the detenue is allowed to remain at large, he will

be a potential threat to the security of the State. It appears that the

satisfaction of the Detaining Authority that the detenue is a potential

threat to the security of the State is solely based on the allegations made

in the aforesaid FIR and no other material. The detenue was already in

custody in the aforesaid FIR and there were remote chances of his

getting bail as he was involved in the offences to which rigor of S.43D

of UAPA is attracted. Thus, there were no compelling reasons for the

detaining authority to pass the impugned order of detention. The same,

therefore, is not sustainable in law.

8) For the afore-stated reasons, the petition is allowed and the

impugned detention order, is quashed. The detenue is directed to be

released from the preventive custody forthwith provided he is not

required in connection with any other case.

9) The detention record be returned to the learned counsel for the

respondents.

(Sanjay Dhar) Judge

Srinagar 27.01.2022 "BhatAltaf, PS"

                                        Whether the order is speaking:     Yes/No
                                        Whether the order is reportable:   Yes/No




MOHAMMAD ALTAF BHAT
2022.01.28 10:18
I attest to the accuracy and
integrity of this document