SABOOR-UL-HAQ MALLA Vs. STATE OF J&K
LAWS(J&K)-2020-10-22
HIGH COURT OF JAMMU AND KASHMIR
Decided on
October 09,2020
Saboor-Ul-Haq Malla
Appellant
VERSUS
STATE OF JANDK
Respondents
Referred Judgements :-
TATE OF JANDK VS. SHABIR AHMAD SHAH [REFERRED TO]SHIBBANLAL SAKSENA VS. STATE OF U.P. [REFERRED TO]
A K GOPALAN VS. STATE OF MADRAS OPPOSITE PARTY; UNION OF INDIA [REFERRED TO]
STATE OF BOMBAY VS. ATAMA RAM SHRIDHAR VAIDYA [REFERRED TO]
BHIM SINGH VS. STATE OF PUNJAB [REFERRED TO]
STATE OF GUJARAT VS. ADAM KASAM BHAYA [REFERRED TO]
STATE OF WEST BENGAL VS. ASHOK DEY [REFERRED TO]
MOHAMMAD SUBRATI ALIAS MOHAMMAD KARIM VS. STATE OF WEST BENGAL [REFERRED TO]
BHUT NATH METE VS. STATE OF WEST BENGAL [REFERRED TO]
DEBU MAHATO VS. STATE OF WEST BENGAL [REFERRED TO]
ANIL DEY VS. STATE OF WEST BENGAL [REFERRED TO]
BIRAM CHAND VS. STATE OF UTTAR PRADESH [REFERRED TO]
ISRAIL SK VS. DISTRICT MAGISTRATE OF WEST DINAJPUR [REFERRED TO]
SHEORAJ PRASAD YADAV VS. STATE OF BIHAR [REFERRED TO]
RAM BALI RAJBHAR VS. STATE OF WEST BENGAL [REFERRED TO]
DHARUA KANU VS. STATE OF WEST BENGAL [REFERRED TO]
ADDITIONAL DISTRICT MAGISTRATE JABALPUR STATE OF UTTAR PRADESH UNION OF INDIA STATE OF KARNATAKA STATE OF MAHARASHTRA STATE OF RAJASTHAN UNION OF INDIA UNION OF INDIA VS. SHIVAKANT SHUKLA:V K S CHAUDHARY:ATAL BIHARI VAJPAYEE:SATYA SHARMA:N K GANPAIAH:SUBHAS:MILAP CHAND KANUNGO:SHRI RAM DHAN:DR REKHA AWASTHI [REFERRED TO]
MANEKA GANDHI VS. UNION OF INDIA [REFERRED TO]
HEMLATA KANTILAL SHAH VS. STATE OF MAHARASHTRA [REFERRED TO]
A K ROY THAN SINGH TYAGI DR VASANTKUMAR PANDIT VS. UNION OF INDIA [REFERRED TO]
SARASWATHI SESHAGIRI VS. STATE OF KERALA [REFERRED TO]
ABDUL LATIF ABDUL WAHAB SHEIKH VS. B K JHA [REFERRED TO]
STATE OF PUNJAB VS. SUKHPALSINGH [REFERRED TO]
DHARMENDRA SUGANCHAND CHELAWAT VS. UNION OF INDIA [REFERRED TO]
KAMARUNNISSA BADHRUNNISSA SITHY AYSHA KAMARUNNISSA BADHRUNNISSA SITHY AYSHA VS. UNION OF INDIA [REFERRED TO]
VEERAMANI VS. STATE OF TAMIL NADU [REFERRED TO]
SUNIL FULCHAND SHAH VS. UNION OF INDIA [REFERRED TO]
UNION OF INDIA VS. ARVIND SHERGILL [REFERRED TO]
UNION OF INDIA VS. PAUL MANICKAM [REFERRED TO]
NARESH KUMAR GOYAL VS. UNION OF INDIA [REFERRED TO]
STATE OF MAHARASHTRA VS. BHAURAO PUNJABRAO GAWANDE [REFERRED TO]
PEBAM NINGOL MIKOI DEVI VS. STATE OF MANIPUR [REFERRED TO]
SUBRAMANIAN VS. STATE OF TAMIL NADU [REFERRED TO]
HUIDROM KONUNGJAO SINGH VS. STATE OF MANIPUR [REFERRED TO]
SHABIR AHMAD SHAH VS. STATE [REFERRED TO]
GAUTAM JAIN VS. UNION OF INDIA & ANR. [REFERRED TO]
UNION OF INDIA VS. DIMPLE HAPPY DHAKAD [REFERRED TO]
JUDGEMENT
Tashi Rabstan,J. -
(1.)District Magistrate, Shopian respondent no.2 here (for brevity "detaining authority"), has, by Order no. 42/DMS/PSA/2019 dated 10.08.2019, placed Saboor-ul-Haq Malla S/o Mohammad Iqbal Malla R/o Pehlipora Shopian (for short "detenu") under preventive detention, with a view to prevent him from acting in any manner which is prejudicial to the security of the State/Country. It is this order, of which petitioner is aggrieved and throws challenge thereto on the grounds tailored in petition on hand.
(2.)The case set up by the petitioner in instant petition is that detenu was arrested by the Police Station Shopian on 03.08.2019, in view of his alleged involvement in FIR No. 88/2018 under Sections 307 RPC, 7/27 A. Act, 16, 18 ULAP Act, FIR No. 208/2018 under Sections 302 RPC, 7/27 A. Act, 16 ULAP Act and FIR No. 281/2018 under Sections 307, 302, 395, 353 RPC, 7/27 A. Act, 16 ULAP Act by the Police Station, Shopian and thereafter was placed under preventive detention in terms of impugned detention order.
2.1. It is averred in the petition that the detenu was not detained in accordance with the provisions of Public Safety Act while ordering detention of detenu.
2.2. It is contended that the allegations made in the grounds of detention are vague, non-existent and passing of detention on such grounds is unjustified and unreasonable. The cases mentioned in the grounds of detention have no nexus with the detenu and have been fabricated by Police in order to justify its illegal action of detaining the detenu.
2.3. It is also contended that the detaining authority has not prepared the grounds of detention himself, has relied only on the police Dossier and not perused any supporting material and seems to have worked on the dictates of police authorities without application of mind.
2.4. It is also averred that the respondents have not provided copies of the FIRs, Statements of witnesses and other material relied upon in the grounds of detention, enabling the detenu to make an effective representation.
2.5. It is claimed by petitioner in petition that the detenu was not told about his rights to make a representation against his detention order to the detaining authority, neither the specified officer before whom the representation was to be made, which has prejudiced his rights.
2.6. It is also claimed that the detention order has not been executed within the stipulated period of time nor has it been approved by the Government within stipulated time which renders detention illegal.
2.7. It is stated that the detenu was not provided the particulars of the youth who are alleged to have been motivated/instigated by the detenu to join the militancy.
2.8. It is submitted by the petitioner that three FIRs have been mentioned in the grounds of detention, however, the detenu was shown involved in only one FIR, i.e., FIR No. 208/2018, therefore, it is clearly evident that the detention order was issued without proper application of mind. It is also submitted that the respondents have also not disclosed whether the person who has explained the detenu is familier with the language which the detenue understands and also the date of month of the incident has not been mentioned.
2.9. In support of arguments, the petitioner has relied upon the judgment reported in 2013 (4) JKJ 663, 2005(1) SLJ 46, 2005(1) SLJ 253, 2007 (3) JKJ 114.
(3.)Counter affidavit has been filed by respondents. Record of the District Magistrate's office has also been produced.
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(2.)The case set up by the petitioner in instant petition is that detenu was arrested by the Police Station Shopian on 03.08.2019, in view of his alleged involvement in FIR No. 88/2018 under Sections 307 RPC, 7/27 A. Act, 16, 18 ULAP Act, FIR No. 208/2018 under Sections 302 RPC, 7/27 A. Act, 16 ULAP Act and FIR No. 281/2018 under Sections 307, 302, 395, 353 RPC, 7/27 A. Act, 16 ULAP Act by the Police Station, Shopian and thereafter was placed under preventive detention in terms of impugned detention order.
2.1. It is averred in the petition that the detenu was not detained in accordance with the provisions of Public Safety Act while ordering detention of detenu.
2.2. It is contended that the allegations made in the grounds of detention are vague, non-existent and passing of detention on such grounds is unjustified and unreasonable. The cases mentioned in the grounds of detention have no nexus with the detenu and have been fabricated by Police in order to justify its illegal action of detaining the detenu.
2.3. It is also contended that the detaining authority has not prepared the grounds of detention himself, has relied only on the police Dossier and not perused any supporting material and seems to have worked on the dictates of police authorities without application of mind.
2.4. It is also averred that the respondents have not provided copies of the FIRs, Statements of witnesses and other material relied upon in the grounds of detention, enabling the detenu to make an effective representation.
2.5. It is claimed by petitioner in petition that the detenu was not told about his rights to make a representation against his detention order to the detaining authority, neither the specified officer before whom the representation was to be made, which has prejudiced his rights.
2.6. It is also claimed that the detention order has not been executed within the stipulated period of time nor has it been approved by the Government within stipulated time which renders detention illegal.
2.7. It is stated that the detenu was not provided the particulars of the youth who are alleged to have been motivated/instigated by the detenu to join the militancy.
2.8. It is submitted by the petitioner that three FIRs have been mentioned in the grounds of detention, however, the detenu was shown involved in only one FIR, i.e., FIR No. 208/2018, therefore, it is clearly evident that the detention order was issued without proper application of mind. It is also submitted that the respondents have also not disclosed whether the person who has explained the detenu is familier with the language which the detenue understands and also the date of month of the incident has not been mentioned.
2.9. In support of arguments, the petitioner has relied upon the judgment reported in 2013 (4) JKJ 663, 2005(1) SLJ 46, 2005(1) SLJ 253, 2007 (3) JKJ 114.
(3.)Counter affidavit has been filed by respondents. Record of the District Magistrate's office has also been produced.
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