Nayeem Ahmad Khan vs State and Others

Mohammad Yaqoob Mir, J.—Pursuant to detention order bearing No. DMS/PSA/ 76/2009 dated 11.2.2010, detenue Nayeem Ahmad

Khan has been detained. Aggrieved thereof, instant petition has been filed.

First it is contended that the detenue was firstly detained on 27.10.2008 pursuant to order of detention passed by District Magistrate,

Baramulla. The said order was revoked and the detenue was released on 9.6.2009. Then again was detained under the orders of District

Magistrate, Srinagar. Petition (HCP) No. 113/2009 was allowed vide judgment dated 16.9.2009 and the detenue was directed to be released, so

was released but was again detained pursuant to the impugned order of detention.

According to the learned Counsel, the detenue was released on 16.9.2009 but again taken into custody on 11.2.2010. Within the said period of

five months nothing has been brought on record to show that the petitioner after release had acted in any manner prejudicial to the security of the

State. Secondly the order of detention was not furnished to the detenue. Thirdly the record forming base for the detention was not also furnished to

the detenue. On vague, uncertain, ambiguous and irrelevant grounds detention order impugned has been passed.

Learned Counsel for the respondents in opposition contended that the detenue repeatedly has been indulging in the activities prejudicial to the

security of the State. His being at large is a constant threat to the security of the State. All the legal requirements have been satisfied, therefore,

order of detention does not suffer from any illegality.

Considered.

Admittedly the detenue has been released on 16.9.2009 in compliance to the judgment dated 16.9.2009 but again apprehended on 11.2.2010.

Now what is the activity attributable to the detenue for said period is not clearly indicated in the grounds of detention except that on 3rd February,

2010 the detenue is shown to have been arrested from Barzullah Bridge where allegedly he was enforcing the strike call given by Hurriyat

Conference and was instigating the youth to stop the plying of traffic on roads and proceedings in terms of Section 107, 151 Cr. P.C. were

initiated against him. In addition past activities have been reflected in the grounds of detention but those past activities were also made base while

passing detention order dated 9.6.2009 which stand quashed on 16.9.2009, therefore, such activities could not be again made base for the

impugned order of detention. It clearly indicates that the Detaining Authority has not considered the factual position vis-`-vis earlier quashed order

of detention which in turn shows lack of application of mind.

The order of detention has not been supplied to the detenue which is a serious lapse and resultantly detention is illegal. Similarly view has been

taken by this Court in the judgment captioned Ghulam Mohammad Halam v. State of J&K SLJ 1991 J&K 364.

The grounds of detention would suggest that the activities attributable to the detenue are vague, particularly it is mentioned that after release, the

petitioner has launched vicious media campaign aimed at propagating the secessionist ideology and inciting the youth to indulge in anti national

activities and instigating them to create law and order problem and his role in organizing stone pelting is very crucial as common people at the

instance of the detenue resort to stone pelting, but it is no where mentioned who were the persons motivated by the detenue or who were person

instigated by him. At least some one amongst them would have been spotted and arrested. Therefore, the allegations leveled are general

allegations. Furthermore the period during which such activities are attributable to the detenue has not been given, when same is of great essence as

the detenue after release on 16.9.2009 was at large only for five months. This also shows as to how the Detaining Authority has applied its mind.

Non supply of the material forming base for the detention is also a valid ground for holding infringement of the right guaranteed under Article

22(5) of the constitution. From the records it nowhere emerges that any such material has been furnished to the detenue when the legal requirement

is that the grounds of detention as well as the material forming base for such detention has to be provided to the detenue so as to enable him to

represent against the order of detention. Non compliance to the same is a serious violation to the Constitutional right guaranteed which in turn

renders the order of detention as illegal.

In the catena of judgments delivered by the Hon'ble Apex Court as well as by this Court, time and again it has been emphasized as to what is

the right to liberty, what is right guaranteed to the detenue under Article 22(5) of the Constitution to represent against the order of detention and it

has also been time and again emphasized that precious right to liberty cannot be defeated. The curtailment of liberty though permissible in certain

circumstances but valid base for so doing is absolutely indispensible.

For the stated reasons, the order of detention bearing No. DMS/PSA/76/2009 dated 11.2.2010 being unsustainable is quashed. Detenue,

namely, Nayeem Ahmad Khan S/O Ghulam Mohammad Khan R/O Shear Abad (Khore) Pattan District Baramulla be released forthwith provided

he is not required in connection with any other case or in connection with any other detention order.

Detention record as produced shall be returned to the learned Counsel for the respondents.