Imtiyaz Ahmad Bhat vs Ut Of J&K & Anr
2022 Latest Caselaw 686 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR

                                             Reserved on: 17.05.2022
                                            Pronounced on: 24.05.2022


                           WP(Crl.) No.178/2021

Imtiyaz Ahmad Bhat                             ...PETITIONER(S)

               Through: - Mr.Gulzar Ahmad Bhat, Advocate.
Vs.

UT OF J&K & Anr.                                ...RESPONDENT(S)

               Through: - Ms. Insha Rashid, GA


CORAM: HON'BLE MR.JUSTICE M.A.CHOWDHARY,JUDGE


                               JUDGMENT

1) The petitioner has questioned in this writ petition the legality

and validity of the order No.38/DMA/PSA/DET/2021 dated

17.10.2021, issued by respondent No.2-District Magistrate, Anantnag,

(for brevity "Detaining Authority") under Section (8) of the J&K

Public Safety Act whereby Imtiyaz Ahmad Bhat S/.O Late Habibullah

Bhat resident of Bhatpora Larnoo District Anantnag (for short

"detenue") has been placed under preventive detention and directed to

be lodged in Central Jail, Jammu.

2) The petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without

application of mind, inasmuch as the Constitutional and Statutory

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

It has been further urged that the material which formed basis of the

grounds of detention and the consequent order of detention has not

been provided to the detenue. It has also been averred that the grounds

of detention are vague and the same are mere assertions of the

detaining authority on which no prudent man can make an effective

representation against the detention. Further it is stated that the

detention order has been passed on the basis of FIR but there is no

mention of FIR, neither in the grounds of detention nor in the order of

detention.

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

averments made in the petition and insisted that the activities of

detenue are highly prejudicial to the security of the State. It has been

averred in the reply that the detaining authority has followed the

provisions of J&K Public Safety Act and the detenue has been

detained only after following due procedure. It is pleaded that the

detention order and grounds of detention along with relevant material

were handed over to the detenue and same were read over and

explained to him. The grounds taken by the petitioner are legally

misconceived, factually untenable and without any merit. The learned

counsel for the respondents also produced the detention record 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 the detention record.

5) Learned counsel for the petitioner, while seeking quashment of

the impugned order, projected various grounds but the main thrust of

challenge to the impugned order of detention is that the grounds of

detention are vague and cryptic, inasmuch as the material particulars

of the banned organization HM, as mentioned in the grounds of

detention, have not been disclosed, which prevented detenue from

making an effective representation against his detention.

6) Impugned Detention Order has been based on that detenue had

been working as over ground worker (OGW) of militant organization

HM, particularly associated with Molvi Ashraf and his associates to

give vent to their nefarious ideology and by indulging in antinational

activities, with the apprehension that if not curbed, he may pose threat

to the security of the State and disturb peace and tranquillity. It was

apprehended that if not checked, detenue is threat to security of State

and disturb peace and tranquillity.

7) On perusal of the detention record produced by learned counsel

for the respondents, the ground projected regarding vagueness of the

averments made in the grounds of detention, appears to be forceful.

There is no mention of the particulars of the place, the identity of the

persons alleged to have received support of the detenue and the

particulars of the period in the grounds of detention. These grounds,

being vague and lacking in material particulars, as such, the detenue

could not make an effective representation against his detention, on

the basis of these vague allegations.

8) Having regard to the aforestated reason there has been violation

of constitutional guarantees envisaged under Article 22(5) of the

Constitution of India. Thus, the detention order is illegal and

unsustainable. In my aforestated view, I am fortified by the judgments

of the Supreme Court in the case of Jahangir khan Fazal Khan

Pathan vs. Police Commissioner, Ahmadabad, (1989) 3 SCC 590

and Abdul Razak Nane khan Pathan v. Police Commissioner,

Ahmadabad, AIR 1989 SC 2265.

9) For the foregoing reasons, the petition is allowed and the

impugned order of detention Order No. 38/DMA/PSA/DET/2021

dated 17.10.2021 passed by District Magistrate Anantnag is set

aside. The respondents are directed to set free the detenue from

the preventive custody forthwith provided he is not required in

connection with any other case(s).

10) The record, as produced, be returned to the learned counsel

for the respondents.

(M.A.CHOWDHARY) JUDGE Srinagar 24.05.2022 "Mujtaba "

SYED MUJTABA HUSSAIN 2022.05.25 05:14 I attest to the accuracy and integrity of this document