HC quashes PSA of two

02/05/2021

Srinagar, May 1: Justice Sanjeev Kumar of J&K High Court while deciding two different petitions, quashed the detention order of Gulzar Ahmad Parray and Rayees Ahmad Hakak who were booked by the Administration under preventive detention.
In the petition filed by Rayees Ahmad Hakakseeking quashment of detention order bearing No.DIVCOM-"K"133/2020 dated 19.05.2020 (the impugned order) issued by Divisional Commissioner, Kashmir (the detaining authority), whereby petitioner has been put under preventive detention with a view to preventing him from committing any act within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act and for maintenance of public order.
Justice Sanjeev Kumar after hearing both the sides observed that the order of detention does not survive the judicial scrutiny for more than one reason. From the grounds of detention, it transpires that the opinion of the detaining authority clearly oscillates between the activities of the detenue relating to illicit trafficking of drugs and those having potential of disturbing public order. FIR No.113/2018 and FIR No.02/2019, which find reference in the grounds of detention, pertain to the offences under NDPS Act and, therefore, if the petitioner was to be detained with a view to preventing him from indulging in illicit trafficking of drugs, there is a separate legislation in place i.e. the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which provides for preventive detention in such matters. Admittedly, the detaining authority has not decided to proceed under the aforesaid Act and may be it did not find sufficient material to derive subjective satisfaction that the activities of the petitioner are such that unless he is placed under preventive detention, it would not be possible to deter him from indulging in the activities of illicit drug trafficking.
Justice Sanjeev Kumar further observed that though the grounds of detention indicate the detaining authority?s awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in the grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail "he may again indulge in serious offences causing threat to public order". (emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified.
In another petition filed by Ghulam Rasool Parray challenging his detention ordered by District Magistrate, Budgam (the detaining authority) vide its order No.DMB/PSA/03 of 2020 dated 27.01.2020 (the impugned order). In terms of the impugned order aforesaid, the petitioner has been put under preventive detention with a view to preventing him from acting in any manner prejudicial to the security of the State.
As per the grounds of detention served upon the petitioner, which are framed by the detaining authority on the basis of material supplied by Superintendent of Police, Budgam, vide his letter dated 27.01.2020, the petitioner is alleged to be a hardcore, habitual and strong supporter of terrorism unleashed in the Valley by some terrorist organizations. The petitioner, with a view to achieve the object of seceding the Union Territory of Jammu and Kashmir from Union of India and its consequent merger with Pakistan, has been resorting to activities which have the effect of causing widespread disturbance and instability. The petitioner, it is claimed, had ex-filtrated to POK in the year 2001 in order to obtain training in handling illegal arms and ammunitions where he remained for at least four years and returned to Valley in the year 2004. The petitioner was later on arrested by the police in FIR No.131/2004 under Section 7/25 Arms read with 6 I. W.T Act registered in Police Station, Beerwah. It is further stated that on 18th of April, 2019, P/S Beerwah, received an information from reliable sources that some miscreants had assembled at polling booth Hardulatinah with a view to disrupt the election process and had resorted to heavy stone pelting upon the security forces causing serious injuries to the security force personnel. With regard to this incident, FIR No.49/2019 under Section 148, 149, 336, 353, 427, 307, 332 RPC etc. was registered in Police Station, Beerwah and investigation set inmotion. During the course of investigation, involvement of the petitioner in the episode was established.It is on the basis of these allegations, which form part of FIR No.131/2004 and FIR No.49/2019, the Superintendent of Police, Budgam, vide his communication dated 25th of January, 2020, recommended the preventive detention of the petitioner. The detaining authority, relying strongly on the aforesaid allegations contained in two FIRs, arrived at subjective satisfaction that in case the petitioner is not detained under J&K Public Safety Act, the security of the State would be jeopardized and there would be imminent threat to human life and property. The detaining authority, thus, found it imperative to detain the petitioner by invoking Section 8 of the J&K Public Safety Act and it is in the aforesaid backdrop, the impugned detention order has been passed against the petitioner and petitioner has been lodged in Kotbalwal Jail, Jammu.
Justice Sanjeev Kumar after hearing both the sides observed that the detention of the petitioner is not sustainable in law for more than one reason. From perusal of grounds of detention, it clearly transpires that the petitioner has been put under preventive detention primarily for his involvement in two FIRs i.e. FIR No.131/2004 and FIR No.49/2019. So far as FIR No.131/2004 is concerned, the petitioner has placed on record judgment of acquittal dated 21st of February, 2009, passed by Sessions Judge, Budgam. Apart from the fact that the allegations contained in FIR registered in the year 2004 are too stale to establish any proximate link with his detention, the detaining authority has shown complete ignorance that the petitioner stood acquitted in the aforesaid FIR on 21st of February, 2009. I am not sure that had this fact been brought by the police to the notice of the detaining authority, what impact it would have made on the subjective satisfaction of the detaining authority but suffice it to say that by not placing this relevant information before the detaining authority, the detaining authority has been deprived of the relevant material which it ought to have taken into consideration for deriving subjective satisfaction. And if we assumed that it was within the notice of the detaining authority and the same was ignored, it would speak volume about the non-application of mind of the detaining authority. For both these reasons, withholding of this relevant information from the detaining authority and its non-consideration vitiates the subjective satisfaction of the detaining authority and, therefore, renders the impugned order of detention unsustainable in law.

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