Jammu & Kashmir High Court
Iftar Hussain Th. Mukhtar Ahmed vs Ut Of J&K And Ors on 2 January, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 2
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 100/2024
CM No. 4049/2024
CM No. 4050/2024
Iftar Hussain Th. Mukhtar Ahmed .....Appellant(s)/Petitioner(s)
Through: Mr. Lawanya Sharma, Advocate
vs
UT of J&K and ors. ..... Respondent(s)
Through: Mr. Pawan Dev Singh, Dy. AG
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
(ORAL)
02.01.2025
1. The petitioner in the instant petition filed under Article 226 of the
Constitution seeks quashing of the detention Order No. 13/DMP/PSA of
2024 (For short 'the impugned order') dated 17.05.2024 passed by
respondent 3 herein (For short 'the Detaining Authority) under and in
terms of the provisions of the J&K Public Safety Act, 1978 (For short
'the Act of 1978').
2. The impugned order has been challenged by the petitioner on multiple
grounds urged in the petition.
3. Counter affidavit to the petition has been filed by the respondents
wherein the petition is being opposed and resisted on the premise that the
impugned order came to be passed against the petitioner in order to deter
him from acting/indulging in prejudicial activities and that the impugned
order does not suffer from any malice or legal infirmity and that while
detaining the petitioner, all provisions of the Act of 1978 as also
safeguards enshrined in Article 22 (5) of the Constitution came to be
fulfilled and adhered to.
Heard learned counsels for the parties and perused the detention
record produced by the counsel for the respondents.
4. Notwithstanding multiple grounds of challenge urged by the petitioner in
the instant petition, the counsel for the petitioner confined the challenge
only to the extent that the Detaining Authority while detaining the
petitioner showed complete non application of mind, in that, the
petitioner in the grounds of detention was shown to be involved in
multiple FIRs' including FIR No. 38/1998 and FIR No. 88/2006, in
which FIRs', the petitioner stands acquitted by the competent court of
law and that the Detaining Authority has shown complete non awareness
about the said fact and that beside the said FIR's, the petitioner has also
shown to have been booked under Section 107/110 of the Code of
Criminal Procedure on 12.01.2023, 04.11.2023, 27.01.2024 and
12.03.2024, when the fact remains that the petitioner was never ever
bound down there under the said provisions by the competent authority.
Learned counsel would further submit that the Detaining Authority post
detention did not furnish relevant material including the dossier to the
petitioner relied upon by the Detaining Authority for detention of the
petitioner rendering him incapable of making a representation against the
detention which failure on the part of the Detaining Authority vitiates the
impugned order.
5. On the contrary, the counsel for the respondents while opposing the
submissions of the counsel for the petitioner would reiterate the
contentions raised in the counter affidavit justifying the passing of the
detention order under challenge in the petition against the petitioner.
6. In so far as the aforesaid first plea of the counsel for the petitioner qua
his acquittal in the aforesaid FIRs' is concerned, perusal of the record
available on the file would reveal that the petitioner stands acquitted by
the court of Sessions Judge, Poonch in terms of decision dated
31.03.2000 of the charge levelled against him in FIR No. 38/1998,
whereas in FIR No. 88/2006 as well, the same stands disposed
of/compounded on 06.12.2014 by the court of law. Further perusal of the
record available on the file tends to show that even the FIR No. 026/2020
referred in the grounds of detention stands settled by the court of
Munsiff, Mendhar on 18.11.2023 having arisen out of alleged violation
by the petitioner of Covid restrictions.
7. The aforesaid position obtaining in the matter is found to have not been
taken cognizance of either by the Sponsoring Agency being SSP, Poonch
in the dossier or else by the Detaining Authority-respondent 3 herein
while ordering the detention of the petitioner under preventive law. The
said non awareness on the part of the respondents including the
Detaining Authority manifestly signifies complete non application of
mind on the part of the Detaining Authority rendering the impugned
order illegal and unsustainable.
8. Besides the aforesaid facts emerging from the record, it is also evident
from the detention record produced by the counsel for the respondents
that the Detaining Authority has not taken into account the material
furnished to it by the Sponsoring Agency qua the proceedings initiated
against the petitioner under Section 107/117 of the Code of Criminal
Procedure, in that, the detention record reveals that SHO, Police Station,
Gursai had sought action against the petitioner from Executive
Magistrate First Class, Harni under Section 107/110 Cr.P.C. and that no
proceedings thereof seem to have been initiated against the petitioner by
the said Executive Magistrate. This fact as well reflects complete non
application of mind by the Detaining Authority while relying upon the
said proceedings alleged to have been initiated against the petitioner
under Section 107/110 Cr.P.C, rendering the impugned order legally
unsustainable.
9. Having regard to the aforesaid position obtaining in the matter, it cannot,
but be said that the preventive detention has been ordered against the
petitioner by respondent 3 in terms of the impugned order in breach and
violation of the statutory provisions of the Act of 1978 inasmuch as,
constitutional guarantees as also the law laid down by the Apex Court in
this regard. A reference to the judgment of the Apex Court passed in case
titled as 'Rahmatullah vs. State of Bihar & Ors.' reported in 1979 (4)
SCC 559 and the judgment passed by this Court in case titled as 'Mohd.
Maqbool Itoo vs. State & Ors.' reported in 2010 (3) JKJ 700 would be
relevant herein.
10. For what has been observed, considered and analyzed hereinabove, the
instant petition deserves to be allowed.
11. Accordingly, the petition is allowed and the impugned order bearing No.
13/DMP/PSA of 2024 dated 17.05.2024 passed by respondent 3 herein is
quashed with direction to the respondents including the concerned Jail
Authority to release the petitioner from preventive detention forthwith
unless required in any other case.
12. Disposed of.
13. The detention record produced by the counsel for the respondents is
returned back in the open Court.
(JAVED IQBAL WANI)
JUDGE
Jammu
02.01.2025
Neha-II
Whether the order is speaking: Yes/No
` Whether the order is reportable: Yes/No
