Parvaiz Ahmad Wagay vs Ut Of J&K&Others

Rajnesh Oswal, J

1) The petitioner through the medium of this petition has impugned the order of detention bearing No.54/DMA/PSA/DET/2022 dated 07.07.2022, issued by District Magistrate, Anantnag-respondent No.2.

2) It is stated that the petitioner was implicated in FIR No.239/2016 under Section 147, 148, 149, 336, 341 and 188 of RPC of Police Station, Anantnag but was granted bail in anticipation of arrest in the said FIR. The petitioner has impugned the order of detention, inter-alia, on the following grounds:

(I) That except the FIR registered in the year 2016, no single illegal activity has been attributed to him anywhere in the records, as such, the grounds for detaining the petitioner are stale and lack live and proximate link.

(II) That the grounds of detention are vague, based on extraneous considerations and on mere assumptions without there being an iota of evidence against the petitioner.

(III) That the material relied upon by the detaining authority while formulating the grounds of detention has not been furnished to the petitioner.

(IV) That the grounds of detention provided to the petitioner were in English language which he was unable to read being a Class 7th dropout and it was incumbent upon the detaining authority to furnish the translated copy of the grounds of detention in any local language which the petitioner understands so as to enable him to make an effective representation against his detention.

3) The reply stands filed by the respondents wherein it has been stated that the petitioner was detained pursuant to the detention order No.54/DMA/PSA/DET/2022 dated 07.07.2022 after taking into consideration the nefarious activities of the petitioner. It is further stated that the petitioner was involved in FIR No.239/2016 under Sections 147, 148, 149, 336, 341, 188 of Police Station, Anantnag and he was working as an Over Ground Worker of the banned terrorist organization LeT and in view of his allegiance with the said organization, it was risky to keep him out during Shri Amarnathji yatra. The warrant of detention was executed through ASI Mushtaq Ahmad on 16.07.2022 who handed over the petitioner to the Superintendent District Jail, Rajouri. The contents of the warrant were read over and explained to the detenue which he understood fully, as is evident from the endorsement made on the copy of the detention order where the petitioner has put his signature in English. The petitioner was informed that he has a right to make a representation to the detaining authority and to the Government as well, if he so desired. It is further averred that the Government after examining the detention order and the material placed on record approved the aforesaid detention order vide order dated 14.07.2022. The Advisory Bord also examined the case of the petitioner and opined in favour of detention of the petitioner. The respondents have, in fact, submitted that the constitutional safeguards have been duly complied with while issuing the order of detention.

4) Learned counsel for the petitioner submitted that the impugned detention order suffers from non-application of mind and the grounds of detention are also vague as no illegal activity has been attributed to the petitioner after 2016 and just on the basis of the assumptions, the order impugned has been passed. Learned counsel for the petitioner relied upon the judgment passed by a Coordinate Bench of this Court in the case of Mudasir Ahmad Bangi vs. UT of J&K & anr. (WP(Crl) No.624/2022 decided on 13.04.2023).

5) Per contra, Mr. Alla-ud-din Ganai, AAG, vehemently argued that the detention order was passed after taking into consideration the dossier submitted by the SSP concerned and the detaining authority while passing the order impugned has recorded its subjective satisfaction that the detention of the petitioner is necessary in the interests of security of the State. He further submitted that the statutory and constitutional safeguards have been followed by the respondents while issuing and executing the impugned detention order.

6) Heard and perused the detention record produced by learned counsel for the respondents.

7) The perusal of the grounds of detention reveals that the respondent No.3 submitted a dossier to the respondent No.2 for detaining the petitioner under the J&K Public Safety Act. In the grounds of detention, the reason mentioned for detaining the petitioner is that in view of the ensuing Shri Amarnathji yatra, it would be risky to keep the petitioner out. Except reference to FIR No.239/2016, there is no mention of specific details of the illegal activities wherein the petitioner has indulged. The impugned order of detention is sheer non-application of mind on the part of the detaining authority and the petitioner is right in contending that on the basis of vague allegations, no effective representation could have been made against the order of detention. On this ground only, the order of detention is required to be quashed. In almost identical grounds, a Coordinate Bench of this Court has quashed the order of detention.

8) Besides, the cause shown by the respondents that it would be risky to keep the petitioner out in view of ensuing Shri Amarnathji Yatra in the year 2022, is no more in existence, as even Amarnathji Yatra for the year 2023 is also over.

9) In view of the above, the impugned detention order is not sustainable in the eyes of law and is, accordingly, quashed. The respondents are directed to release the petitioner from the preventive detention forthwith, provided he is not involved in any other case.

10) The detention record be returned to learned counsel for the respondents.