Jammu & Kashmir High Court - Srinagar Bench
Muzaffar Ahmad Malik vs Ut Th. Police Station Dooru on 13 March, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Sr. No. 09
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlA (D) No. 50/2023
Muzaffar Ahmad Malik ... Appellant(s)
Through: Mr. Omais Kawoosa, Advocate
Vs.
UT Th. Police Station Dooru ...Respondent(s)
Through: Mr. Mubeen Wani, Dy. AG
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
13.03.2024
1. The present appeal has been filed by the appellant herein, who is
aggrieved by the order dated 27.07.2023 passed by the court of
learned Special Judge (Designated Court under NIA), Anantnag. By
the said impugned order, the application for regular bail moved by the
appellant herein was dismissed.
2. Having gone through the entire order passed by the learned court
below the same is unsatisfactory as the prosecution's case has not
even been referred to with clarity. In paragraph 03 of the order, the
learned Trial Court, upon perusal of the challan, lays down the facts of
the case according to which, the personnel of Police Station Dooru
were on a search for missing Nissar Ahmad Khanday and came to
know that he had joined the militant outfit JeM (Jaish-e-Mohammad)
and affiliated himself with the banned organization on 12.10.2018.
Thereafter, the learned Trial Court records that during investigation on
02.05.2019, the police came to know that Nissar Ahmad Khanday was
at village Dood Wagon. However, the said accused managed to escape
from the village with the aid and assistance of Muzaffar Ahmad Malik
(appellant herein) and one Ghulam Qadir Malik who are residents of
Dood Wagon and that the appellant was working as an OGW (over
ground worker) for the militant Nissar Ahmad Khanday and providing
him food and shelter and also transmitting information about the
security forces. It was also recorded by the learned Trial Court that the
appellant along with the other co-accused persons motivated the youth
to join the militant organization, based on which the FIR was
registered. However, learned counsel for the appellant submits that the
appellant was not named in the FIR, this is not disputed by the learned
counsel for the respondent-UT.
3. The peculiar circumstances of this case is that the appellant was
initially arrested on 03.05.2019 in the case. However, as the appellant
was booked under the Public Safety Act which was thereafter revoked
by the Government itself, and the appellant released and thereafter he
was arrested on 18.11.2021(recorded as 10.07.2021 in the impugned
order). Explaining this peculiar circumstance, learned counsel for the
respondent-UT submits that though the appellant was booked under
the Public Safety Act and taken into custody after his initial arrest on
03.05.2019 in the FIR case, his detention was revoked by the
Government on account of the Covid-19 pandemic due to which the
jails were overcrowded. In this case, it is necessary for us to observe
that the detention under the PSA of the appellant was revoked by the
Union Territory itself which reflects that the Union Territory itself
was of the opinion that there was inadequate material to hold him
detention in the first place and that is why he was amongst chosen few
who were under preventive detention in 2019 whose detention orders
were revoked setting them free. We say this as, if there was adequate
material against the appellant herein which gave rise to the subjective
satisfaction of the detaining authority that the appellant would be a
clear and present threat to the security of the State if he was released
prematurely, it was very unlikely that his order of detention would
have been revoked by the UT Government, the covid condition
notwithstanding. It is also undisputed that not every person detained
under the PSA was released during the Covid-19 period.
4. Coming back to the facts of this case, the appellant was thereafter
taken into custody once again by the police as stated hereinabove on
18.11.2021 and has been in judicial custody ever since. At that time
when the order was passed by the learned court below certain
prosecution witnesses were already examined. The counsel for the
appellant had argued before the learned Trial Court that even the
statements of those witnesses who had deposed before the learned
court below do not disclose that the applicant was involved in any
offence, much less an offence under the UAPA. But for recording the
statement of the learned counsel for the appellant before the learned
Trial Court, the Trial court has not even referred to the statement of
those prosecution witnesses fleetingly to even assess, without a roving
enquiry, whether a prima facie case was disclosed against the
appellant herein. Thereafter, the learned Trial Court has embarked
upon a discourse with regard to the importance of national security
and how the situation in the Union Territory of J&K was vitiated
because of terrorism and has referred to judgments of the Superior
Courts with regard to the conditions in which bail may be granted but
has refrained from even touching the basic facts of the case while
dismissing the application for bail and has not even said a single word
with regard to the nature of evidence against the appellant warranting
his continued incarceration as a under trial.
5. This Court is cognizant of the fact that the past in the Union Territory
of Jammu and Kashmir was horrendous, instances of violence was
unspeakable, and acts of terrorism were rampant. However, even in
those conditions and circumstances, it would be improper to detain a
person or arrest him on a fleeting suspicion alone without any prima
facie evidence in support of those allegations against such a person. It
is possible that the absence of evidence does not necessarily mean that
the person so taken into custody is innocent, he may be guilty of those
actions suspected against him by the security forces or the State. The
problem arises where the assessment of the State is wrong, and an
innocent person is taken into custody based on suspicion. Such a
person who may otherwise be a fence sitter, with nothing to gain or
lose from the situation in the Union Territory of JK can tip over to the
side of the militants, only on account of a feeling that he cannot get
justice from the instrumentalities of the State or the Courts. The
situation in which the bureaucracy and the police operate is most
unenviable. They are perpetually caught between the devil and the
deep sea and errors can be made. It is precisely because of this reason
that while dealing with an application for grant of bail the court
should at least ask the prosecution as to the availability of prima facie
evidence against the appellant/accused to satisfy itself that in all
probability than not, it would be counterproductive to the welfare of
the State if the accused is enlarged on bail.
6. Reverting once again to the purported material against the appellant
herein collected by the police during investigation and also on a
superficial appreciation of the deposition of witnesses for the
prosecution before the Trial Court the following story emerges.
7. The police received an information with regard to presence of the
main accused Nissar Ahmad Khanday at village Dood Wagaon along
with two other OGWs having food in the house of Mohd Iqbal, upon
reaching the village they find that the main accused Nissar Ahmad
Khanday has escaped.
8. After the passage of one month, the appellant was taken into custody
on the basis of suspicion. He was searched and nothing was seized
from him. The house where they had a meal along with the main
accused is also searched, and no recovery is made from there.
Subsequently another accused Zahid Ahmad Tantray is arrested and
from his possession 20 live rounds of AK47 are seized.
9. It is relevant to mention here said Zahid Ahmad Tantray has already
been enlarged on bail (perhaps on default bail as so stated by the
learned counsel for the appellant). Till date twelve witnesses for the
prosecution have been examined before the learned Trial Court. None
of them have spoken anything incriminating against the appellant.
They say that the suspicion on the appellant is on account of
information received by the police. In fact, PW2 who is Special Police
Officer (SPO) Fayaz Ahmad Kumar in his examination-in-chief has
stated that he could not identify the accused persons on account of the
passage of time. He says on 30.10.2018, he was posted in Police
Station, Dooru, on which date a missing report in respect of the main
accused of Nissar Ahmad Khanday was lodged in Police Station on
which he along with another witness Mohammad Ashraf had gone to
the house of Nissar Ahmad Khanday located at Dood Wagaon where
on enquiry he found that Nissar Ahmad Khanday has joined the
banned terrorist outfit of JeM.
10. On cross examination, this witness deposed that he did not know
accused Muzaffar Ahmad Malik (appellant herein) and Mohd Iqbal
Malik. He further says that he neither saw them having any contacts
with any terrorist out nor saw them ever possessing any weapon with
them nor heard that the said Muzaffar Ahmad Malik and Mohd Iqbal
Malik were affiliated with any terrorist outfit. He also says that he
never saw them arrested in the police station. He further states on the
cross examination that he has no knowledge as to why these two
persons (appellant herein and Mohd Iqbal Malik) were arrayed as
accused in the instant case. This witness has not been declared hostile
and neither has he been re-examined by the prosecutor and, therefore,
the statement can prima facie be seen as binding the prosecution.
11. Similar is the statement of PW-5 SGCT Hardeep Anthar, who
identifies the accused shown to him through VC and he says on that
day he was posted at Police Station Duroo and that the Dy. SP
received an information that some persons were working as OGW's in
village Dood wagaon who were also working with active militant
Nissar Ahmad Khanday and were providing food and shelter besides
giving him information relating to the movement of security forces.
The OGW's were also helping the main accused to move from one
place to another. This witness does not state that the appellant was one
of those OGW's. He further states in his examination-in-chief that the
twenty rounds of AK47 were seized from the possession of co-
accused Zahid Ahmad Tantray.
12. On cross-examination, this witness deposed that no arms or
ammunition was ever recovered from the possession of accused Nos.
1 & 2 in his presence (appellant and co-accused), and neither was any
disclosure statement recorded in his presence. He further states that he
got his 161-statement recorded after 2 ½ years after the arrest of
accused 1 & 2 in the instant case and during that time he has never got
his statement recorded anywhere else. Statement of other remaining
witnesses do not level any incriminating allegation against the
appellant which could raise a prima facie opinion against the
appellant.
13. Learned counsel for the respondent-UT submits that they are 13
witnesses yet to be examined by the prosecution and that some
amongst them may deposes against the appellant. We asked learned
counsel for the Union Territory to refer to 161 statement of those
witnesses and inform the Court whether the said witnesses have stated
anything against the appellant that could raise a prima facie opinion
against him. After having gone through the records, no such
submissions have been forthcoming from the learned counsel for the
respondent-UT.
14. Under the circumstances, in view of what has been argued and
considered by us hereinabove, and the fact that the appellant has been
in judicial custody for more than two years and out of 25 witnesses
only 12 witnesses have been examined who have not stated anything
against the appellant herein, and the Union Territory not having been
able to point out anything from 161 statement of the remaining
witnesses that could raise a prima facie concern in this Court that
releasing the appellant may be counterproductive to the welfare of the
State, the appeal is allowed. He shall be set forth at liberty subject to
Rs. 50,000/- personal bond and one surety to the like amount to the
satisfaction of the learned court below.
15. The Appeal stands disposed of.
(MOKSHA KHAJURIA KAZMI) ATUL SREEDHARAN)
JUDGE JUDGE
SRINAGAR:
13.03.2024
ARIF
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
