Mushtaq Ahmad Mir vs Union Territory Of J&K And Others
2023 Latest Caselaw 1305 j&K/2

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                                                               Sr. No.02
                                                               Regular List
     IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                      LPA No.263/2022 in
                     [WP (Crl) No.215/2021]

   Mushtaq Ahmad Mir                                ...Appellant(s)/Petitioner(s)

   Through: Mr. Mohammad Saleem Mir, Advocate
                                       Vs.
   Union Territory of J&K and others                           ...Respondent(s)

   Through: Mr. Satinder Singh Kala, AAG

   CORAM:
   HON'BLE THE CHIEF JUSTICE
   HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                              O R D E R (ORAL)

12-10-2023

01. The present Letters Patent Appeal (LPA) has been preferred challenging

the judgment and Order dated 03.11.2022 by which the learned Single

Judge dismissed the writ petition bearing WP (Crl) No.215/2021 titled

"Mushtaq Ahmad Mir Versus Union Territory of J&K and others", and

has also sought quashment of detention order dated 19.10.2021 issued by

the detaining authority.

02. Heard learned counsel for the appellant and also learned counsel for the

respondents.

03. The grounds urged by the appellant before us are as follows:-

i. That the detaining authority failed to communicate the grounds of detention in the language understood by the detenue and copies of the documents were not furnished in the language understood by the detenue.

ii. The detenue had not been informed of his right to file representation against the detention order because of which he could not file any representation before the competent LPA No.263/2022 in [WP (Crl) No.215/2021]

authorities which is violative of Article under 22(5) of the Constitution of India.

iii. The petitioner was earlier booked under Public Safety Act (PSA) vide order dated 26.09.2016 based on certain FIRs namely FIR No.363 of 2016 under Section 188, 148, 149, 341, 427, 332 and 307 RPC. The said detention order, on being challenged, was quashed by this Court on 31.05.2017 in HCP No.35/2017 titled "Mushtaq Ahmad Mir Versus State of J&K and another". Yet, the petitioner has been again detained by the impugned detention order on the basis of same allegations, and infact, in the present detention, the same grounds which were used earlier against the petitioner in the earlier detention order dated 26.09.2016 have been used in the present case.

04. We have heard the learned counsel for the parties and also perused the

records produced before us.

05. As regards the first ground, what we have noted is that the petitioner

never raised the said issue before the learned Single Judge as is evident

from the para 4 of the impugned judgment dated 17.11.2022 which is

reproduced herein below:-

"4. Learned counsel for petitioner has stated that impugned order of detention is unconstitutional, illegal and bad in law as detaining authority has not followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution of India. According to learned counsel for petitioner, the documents, statement of witnesses and other relevant material referred to and relied upon in grounds of detention by detaining authority have not been supplied to detenu and, as such, he could not make a representation against detention.

In view of above submission, I have gone through the detention record produced by learned counsel for respondents, which reveals that copy of grounds of detention, copy of detention order, copy of dossier, copies of FIR, statements of

LPA No.263/2022 in [WP (Crl) No.215/2021]

witnesses and other related relevant documents relied upon by detaining authority while passing impugned order of detention, were provided to detenu. Perusal of Execution Report as well as Receipt of Grounds of Detention and other material, reveals that as many as 31 leaves, comprising of copies of order of detention, grounds of detention, dossier, FIR, seizure FIR, statements of witnesses and other related documents have been furnished to detenu. Perusal thereof also reveals that detenu had been informed to make a representation against his detention both to the Government as well as detaining authority.

Interestingly, although, it is vehement contention of petitioner at ground (a) of writ petition that copy of dossier was not provided to detenu, yet of his own volition, petitioner has placed on record copy of dossier as Annexure to writ petition (pages 22 to 25). This per se depicts and shows that the material, relied upon by detaining authority, has been furnished and provided to detenu. In that view of matter, submission of learned counsel for petitioner that detenu has not been provided material relied upon by detaining authority, has no substance and is, therefore, misconceived. And on this count writ petition is liable to be dismissed". and as such, we are not able to entertain this plea taken for the first time before us.

06. As regards the allegation that the grounds of detention had not been

furnished to the detenue, the same has been dealt with by the learned

Single Judge in para 4 above and the learned Single Judge also had made

an observation that while making an averment in ground (a) of the writ

petition that the copy of the Dozier and documents were not provided to

the detenue, yet on his own volition, the petitioner placed on record the

copy of Dosier as annexure to the writ petition and under the

LPA No.263/2022 in [WP (Crl) No.215/2021]

circumstances, the learned Single Judge has also held that the said plea

was without basis.

07. The detention records which have been produced before us by the

learned counsel for the respondents and on perusal of the same it can be

seen that the detention grounds have been furnished to the detenue and as

such, we are not inclined to entertain this said plea also.

08. The third plea is that the detenue was earlier booked under Public Safety

Act vide detention order dated 26.09.2016 and that the same grounds

which he was detained have been invoked to detain him in the present

case also under detention order dated 19.10.2021. What we have noted

from the records as also from the grounds of detention furnished to the

petitioner is that it has been clearly mentioned in para 3 of the said

grounds of detention about his earlier detention under Public Safety Act,

yet new grounds have also been mentioned in para 3 of the said grounds

of detention. In the said para 3 of the grounds of detention, it has been

mentioned that it has been discreetly learnt from the reliable sources that

soon after his release from Public Safety Act (PSA) detention, the

detenue again got in touch with his terrorist associates of LeT and started

to build up a network with the intention to overawe the Government

forces deployed for maintenance of peace and order and based on such

information, the In-Charge Police Post Drugmulla vide his complaint

No.26/6-10/PDD/2021 dated 13-10-2021 under Section 107/151 Cr.PC

filed before Executive Magistrate, First Class tried to bound the detenue

along with some other similar kind of persons from the area and the

Executive Magistrate First Class (Tehsildar Drugmulla) on a surety

LPA No.263/2022 in [WP (Crl) No.215/2021]

bond released the detenue on 16-10-2021 to give him yet another chance

of transforming into a ordinary citizen.

09. Further it has been mentioned in para 4 that he is not showing any signs

of improvement and he has continued to remain in touch with the

terrorist outfits by using extremely modern communication technology

by use of VPNs, encrypted messaging application and hotspots. Thus, it

cannot be said that the present detention has been issued on the stale and

same grounds as contended. In fact, new grounds have been mentioned

as stated in para 3 and 4 of the detention which are reproduced herein

below.

3. The report of Sr. Superintendent of Police, Kupwara further reveals that earlier on the recommendation of Superintendent of Police Handwara vide his No. Pros/Dossier/2016/2227-30 dated 24-09-2016 dated 26-09-2016, being as an incorrigible anti-national element. It has been discreetly learnt from credible sources that soon after his release form PSA detention, the subject again got in touch with his terrorist associates of LeT and started to build up a network with the intention to overawe the Government forces deployed for maintenance of peace and order. Based on such information, the In-charge Police Post Drugmulla vide his complaint No. 26/6- 10/PPD/2021 dated 13-10-2021 u/s 107/151 Cr.PC filed before Executive Magistrate First Class tried to bound down subject along with some other similar kind of persons from the area. The Executive Magistrate Fist class (Tehslidar Drugmulla) on a surety bond released the subject on 16-10-2021 to give him yet another chance of transforming into a ordinary citizen.

4. The dossier also reveals that the subject has emerged to be a national security suspect and despite being dealt under legal provisions has become so fearless that he is not showing any signs of improvement. The subject changing his earlier stance has clandestinely volunteered to work for LeT in its recent LPA No.263/2022 in [WP (Crl) No.215/2021]

plans of killings of innocent civilians in Kashmir Valley and execute the plains in Kupwara district. After putting in strenuous efforts, various agencies though coordinated efforts have been able to identify the subject and unearth his linkages with terrorist outfits in the face of the use of the extremely modern communicated technology by the individual to evade being identified. The recent use of VPNs, encrypted messaging applications and hotspots by such individuals has made identification and apprehension difficult. It is only after deep and painstaking analytics, that individual has been identified.

10. Under the circumstances, we are not inclined to accept this plea taken by

the learned counsel for the appellant that the present detention order is

based on same grounds of detention which was quashed by this Court on

earlier occasion.

11. Accordingly, for the reasons discussed above, we are not inclined to

interfere with the impugned judgment and Order dated 03.11.2022 passed

by the learned Single Judge and the appeal is dismissed as being devoid

of any merit.

12. Disposed of along-with connected CMs.

      (MOKSHA KHAJURIA KAZMI)                     (N. KOTISWAR SINGH)
                   JUDGE                               CHIEF JUSTICE

SRINAGAR
12-10-2023
Shameem H.



        Whether the Judgment is reportable:                  Yes/No.




LPA No.263/2022 in
[WP (Crl) No.215/2021]