Ishfaq Ahmad Sofi vs State and Others

Mohammad Yaqoob Mir, J.—Pursuant to detention order bearing No. DMS/PSA/02/2014 dated 3rd July, 2014, Ishfaq Ahmad Sofi

(hereinafter referred to as the detenue) has been detained and lodged in District Jail, Kupwara. Dissatisfied therewith, instant petition has been filed

by the petitioner seeking quashment of the same on various grounds. Respondents time and again were granted opportunities for filing the counter

affidavit, which they have not, right to file stand closed, now the respondents have not even chosen to appear, perhaps realizing that the detenue is

in custody for more than five months, as the period of detention has to be six months only except for its extension.

Basically, detenue in connection with case registered as FIR No. 88/2014 P/S Safakadal had been arrested for commission of offence

punishable under Section 7/25 Arms Act. His activities as noticed in the grounds of deter on formulated by the District Magistrate, Srinagar

suggest that his participation in militancy activities. He had come into contact with two foreign militants in the year 2005 who motivated him to join

terrorist organization, initially he allegedly used to arrange SIM cards, food and shelter for the militants of Harkatul Mujahideen outfit and used to

provide them information regarding movement of security forces in the neighboring town Sopore and other places which helped them to evade

arrest. He was also engaged in transporting arms and ammunition from one place to another, was arrested in the year 2005 by SOG Sopore and

detained under Public Safety Act. After release from the detention, he has not shun the path of violence and continued to remain in constant touch

with the militants of said outfit. He has assumed high position in the network of said outfit and, as such, was trapped by SOG Srinagar on

31.5.2014. Three grenades were recovered from his possession. Finally, it has been noticed that the activities of the detenue are highly prejudicial

to the maintenance of security of State and warrants immediate preventive measures to be taken against him. It is also mentioned that normal law

has not been found sufficient to deter him from indulging in the acts of terrorism.

The first contention of the learned counsel for the petitioner is that the grounds of detention are without any basis. In case detenue would have

been indulging in subversive activities from the year 2005, then at least a single case till the year 2013 would have been registered against him so as

to find mention in the grounds of detention. The contention carries weight as the other-side despite repeated opportunities have not only failed to

file the counter affidavit but have also failed to produce any record so as to justify the grounds of detention.

The next contention of the learned counsel is that the detenue has been arrested in the year 2014 in connection with FIR No. 88/2014 P/S

Safakadal, he has neither applied nor released on bail. When it is so, the detaining authority was to record compelling reasons for ordering

detention under the provisions of Jammu & Kashmir Public Safety Act. The contention has substance as nothing has been brought on record,

which would suggest that the detenue had applied for the bail. When the detenue was already in custody, there could be no reason for ordering his

detention except for compelling reasons. When only one case is registered against the detenue, as such, has been taken into custody, what was the

necessity of passing the order of detention, is not forthcoming.

It is further highlighted by the counsel for the petitioner that the grounds of detention are replica of the dossier prepared by the police agency

with small variation of irrelevant words here and there which position is also supported by the language of the order of detention wherein it is

mentioned that Senior Superintendent of Police has produced the material record, such as dossier and other connecting documents, on perusal of

which preventive measures are required to be resorted to which in other words would mean that the grounds of detention have not been

formulated in the manner so as to make the same as base for the order of detention. Non-application of mind is clear as in support of the activities

as attributed to the detenue, which find place in the grounds of detention, no supporting material has been placed on record.

In the afore-stated circumstances and facts, the impugned order of detention dated 3rd July, 2014 is unsustainable, as such, is quashed.

Custody of the detenue shall be governed by the orders of the court of competent jurisdiction in connection with case registered as FIR No.

88/2014 P/S Safakadal and in connection with any other case, if pending against him. Petition accordingly succeeds.