Mukhtayar Ahmad Bhat vs Ut Of J&K & Ors
2023 Latest Caselaw 970 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR
                                                Reserved on: 02.08.2023
                                                Pronounced on:18.08.2023

                          WP(Crl.) No.569/2022


MUKHTAYAR AHMAD BHAT                              ...PETITIONER(S)

               Through: - Mr. Asif Maqbool, Advocate.
Vs.

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

               Through: - Mr. Allau-ud-din Ganai, AAG.


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


                                 JUDGMENT

1) By the medium of instant petition, the petitioner has challenged

the legality and veracity of the order No.42/DMA/PSA/DET/2022

dated 29.06.2022, issued by District Magistrate, Anantnag - respondent

No.2 herein, in terms whereof, Mukhtayar Ahmad Bhat S/o Late Mohd

Ramzan Bhat R/o Bonpora Mohalla Ar Dehruna Dooru District

Anantnag (hereinafter referred to as the detenue), has been placed under

preventive custody and lodged in District Jail, Kishtawar), in order to

prevent him from acting in any manner prejudicial to security of the

State.

2) The petitioner has contended that the detaining authority has

passed the impugned detention order mechanically without application

of mind as the allegations mentioned in the grounds of detention have

no nexus with the detenue and that the same have been fabricated by

the police in order to justify its illegal action of detaining the detenue.

It has been contended that the grounds of detention are vague on the

basis of which no prudent man can make a representation against such

allegations. It has been further contended that the procedural safeguards

have not been complied with in the instant case, inasmuch as whole of

the material which formed basis of the impugned detention order has

not been supplied to the petitioner. That the grounds of detention are

non-existent and stale and that the representation filed by the detenue

has not been considered by the respondents.

3) Upon being put to notice, the respondents appeared through their

counsel and filed their reply affidavit, wherein they 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 is pleaded that the

detention order and grounds of detention along with the material relied

upon by the detaining authority were handed over to the detenue and

the same were read over and explained to him. It is contended that the

grounds urged by the petitioner are legally misconceived, factually

untenable and without any merit. That the detenue was informed that

he can make a representation to the government as well as to the

detaining authority against his detention. It is further claimed in the

reply affidavit that all statutory requirements and constitutional

guarantees have been fulfilled and complied with by the detaining

authority and that the order has been issued validly and legally. The

respondents have placed reliance on various judgments of the Supreme

Court. The respondents have produced the detention record to lend

support to the stand taken in the counter affidavit.

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

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

during the course of arguments, was on the ground that the grounds of

detention are vague on the basis of which the petitioner could not have

made an effective representation against the order of detention

5) 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 places and the identity of

the terrorists, to whom the petitioner was allegedly providing logistic

support. The particulars of the period when the detenue is alleged to

have provided logistic support to the terrorists are also not mentioned

in the grounds of detention. Thus, the grounds, being vague and lacking

in material particulars, the detenue could not have made an effective

representation against his detention. Therefore, there has been violation

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

Constitution. The detention order, as such, is illegal and unsustainable.

In my aforesaid view, I am fortified by the judgments of the Supreme

Court in the case of Jahangirkhan Fazal Khan Pathan vs. Police

Commissioner, Ahmadabad, (1989) 3 SCC 590, Abdul Razak Nane

khan Pathan v. Police Commissioner, Ahmadabad, AIR 1989 SC

2265, , Mohd. Yousuf Rather vs. State of J&K & Ors, 1979 4 SCC

370 and Piyush Kantilal Mehta vs. The Commissioner of Police,

Ahmedabad City and Ors. 1989 (1) Crimes 176 (SC).

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

impugned detention order is quashed. The respondents are directed to

release the petitioner from the preventive custody forthwith, provided

he is not required in connection with any other case.

7) The record be returned to learned counsel for the respondents.

(Sanjay Dhar) Judge Srinagar 18.08.2022 "Bhat Altaf, PS"

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