Zahid Ahmad Najar vs UT Of J&K & Ors

Rajnesh Oswal, J

Aggrieved of the order of detention bearing No.16/DMA/PSA/DET/2022dated 10.04.2022 (for short “the impugned order”), the petitioner has assailed the same, inter alia, on the following grounds:

i) That the petitioner has been detained on vague and non-existent grounds.

ii) That though the detaining authority has mentioned in the grounds of detention that the petitioner has been arrested in FIR No.15/2022 under Section 120-B, 506 IPC and 13 Unlawful Activities Prevention Act registered with Police Station, Bijbehara but there is no possibility of getting any bail from any court and the order impugned has been passed only on assumptions.

The counter affidavit stands filed by the respondents wherein it has been stated that the petitioner is an Over Ground Worker of banned terrorist organization Kashmir Freedom Fighters, an offshoot of LeT and is trying to strengthen the influence of outfit by giving every kind of support to active militant outfit and is indulging in anti-national activities. It has been further stated that the petitioner has voluntarily developed contacts with the various terrorist/secessionist organizations to carry out the activities of secessionism and terrorism and supported the militants by providing shelter and transportation besides insisting youth to support and join militant outfits. The petitioner along with his five associates was arrested by Police Station, Bijbehara, on 08.02.2022 at Padshahi Bagh, Bijbehara following recovery of 30 posters of banned outfit Kashmir Freedom Fighters, an offshoot of LeT, and after examining the dossier and other material, the detaining authority was satisfied that the petitioner’s activities are prejudicial to the security of the State and, as such, his preventive detention was ordered in terms of impugned order. It has been submitted that the grounds taken by the petitioner are legally misconceived and factually untenable and without any merit. The material relied upon by the detaining authority has been furnished to the petitioner and he was also informed of his right to make a representation against his detention. It has been further averred that the detention of the petitioner has been ordered strictly in accordance with the provisions of the J&K Public Safety Act and all the procedural safeguards and the rights guaranteed to the petitioner under the Constitutions have been adhered to.

Learned counsel appearing for the petitioner vehemently argued that in respect of offences under ULA(P) Act, bail applications are rarely allowed and the petitioner had not been granted bail, as such, the finding recorded by the detaining authority that there is likelihood of grant of bail to the petitioner is legally untenable.

Per contra, Mr. Allau-ud-Din Ganai, learned AAG, submits that the detaining authority has rightly passed the order of detention as the petitioner was found to be in possession of posters of a banned outfit. He further submitted that all the material relied upon by the detaining authority was duly provided to the petitioner against proper receipt and the contents of the grounds of detention were read over to him in the language which he fully understood and he was informed that he has a right to make a representation to the detaining authority as also to the Government against his detention.

Heard and perused the record.

The perusal of the record reveals that the detaining authority has mentioned in the order of detention that there is every apprehension that the petitioner may be enlarged on bail. This apprehension has been expressed by the detaining authority on the basis of the dossier submitted by the S.S.P Anantnag, wherein it is mentioned that there is every apprehension that the subject (petitioner herein) may be released on bail sooner or later.

The expression ‘sooner or later’ is a vague term. The detenue under the Act at the first instance can be detained for a period of six months only. The expression ‘later’ used by the sponsoring agency not only demonstrates the doubt lingering in the mind of sponsoring agency in respect of reasonable likelihood of the detune being released on bail but also the intent of the detaining authority to detain the detenue indefinitely. This Court fails to understand that once the sponsoring agency was not sure about the petitioner getting bail in near future, then how the detaining authority can record its satisfaction that there is apprehension that the petitioner may be released on bail and he may again indulge in activities prejudicial to the security of the UT of J&K. The detaining authority is expected to examine the material produced by the sponsoring agency, apply its mind on the same and then record its satisfaction that the detention of the detenue is necessary, as there is every likelihood of the detenue being enlarged on bail. In the instant case, the detaining authority has not applied its mind and in a mechanical manner has observed that there is apprehension that the subject may be bailed out while issuing the order of detention.

The Hon’ble Supreme Court in Sama Aruna v. State of Telangana and another (AIR 2017 SC 2662), has held as under:

“On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.”

In view of the law laid down by the Hon’ble Apex Court, it is evident that once the detenue is in custody in substantive offence, the order of detention should not be normally passed.

1) In view of what has been discussed hereinabove, the present petition is allowed and the respondents are directed to release the detenue forthwith, provided he is not involved in any other case.

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