Srinagar, May 31: The Jammu Kashmir High Court Monday quashed detention of a Baramulla resident who was alleged to be an â€œover-ground worker (OGW) of Hizbul Mujahideen outfit" and was booked under Public Safety Act (PSA) in 2020.
Allowing the petition, a court of Justice Ali Mohammed Magrey struck down PSA of Rameez Ahmad Malla, son of Abdul Majeed Malla, a resident of Wattergam, Rafiabad in Baramulla district and directed for his immediate release.
The court while quashing the PSA, held that the non-application of mind by the detaining authority â€œis fatal and goes to the root of the detention and, it is sufficient to vitiate the impugned order of detention.â€Â
"For that reason, there is hardly any necessity to consider other grounds of challenge urged by the counsel for the petitioner," the court said.
The court directed the Registrar Judicial to send a copy of the order to the Principal Secretary to the Director-General of Prisons and also concerned Jail authorities for compliance by the mode available.
The police dossier had alleged that in May 2019 the detenu, who is a 9th standard student and was shopkeeper by profession, developed contacts with one foreign militant alias Maz Bahi of Hizbul Mujahideen outfit and started providing all sorts of assistance to the said foreign militant.Â
It alleged that the detenu provided food and shelter to the said militant in other houses of the area.
"The detenu got motivated by said militant to work with the outfit as OGW," the dossier alleged.
It further said that the detenu was instrumental in strengthening the militancy network in the area of Rafiabad.
The dossier said, the petitioner was apprehended on November 7, 2019 in case FIR 161/2019 under Sections 18,39 of ULA(P) Act and 7/25 Arms Act registered in Police Station Dangiwacha, which is under investigation.Â
The detenu despite being under custody in the said FIR was booked under PSA by the detaining authority which passed the detention order.
Aggrieved of the order, the detainee's father, Abdul Majeed, through advocate Wajid Haseeb challenged the detention order issued by district magistrate Baramulla on February 14, 2020.
The petitioner challenged the order on the grounds that the allegations in the grounds of detention are vague and indefinite and no prudent man can make an effective representation against these allegations.
It said that at the time of passing of the detention order, the detenu was already in custody in FIR 161/2019 and he had neither applied for bail nor bail was otherwise due to him, particularly in view of the fact that the offences alleged against him were covered under Section 43D of ULA(P) Act.Â
"The detaining authority despite having knowledge of the custody of the detenu has not spelt out any justified and compelling reasons to detain the petitioner under preventive detention," the petition said.
It said that the detention order is based on single alleged activity which as per the respondents occurred on September 07 2019 and the detention order was passed on February 14, 2020, after a delay of more than three months.
"In the absence of any explanation with regard to delay, the detention order is vitiated and cannot sustain," the petition said.
The court after perusing the records pointed out that the detenu was released on bail by the competent court of jurisdiction on February 26, 2019 in FIR 161/2019. "But instead of releasing him, he was detained under Public Safety Act and interestingly, the factum of detenu having been released on bail in the FIR was not brought to the notice of detaining authority."
"It is because of this omission on the part of Senior Superintendent of Police, the detaining authority has categorically stated in the grounds of the detention that the detenu was under judicial remand and that there was every likelihood of his being admitted to bail," the court underscored.
The court recorded that it is clear that either there is a lapse on the part of police to provide all relevant material to the detaining authority or there is lack of application of mind on the part of detaining authority.
"The fact, however, remains that at the time of passing of the detention order, the detaining authority was not aware whether the detenu was in police/judicial custody or he stood released on bail," the court said.
The court said that it cannot be denied that it was a relevant information that was required to be produced before the detaining authority to enable it to derive subjective satisfaction regarding the necessity of placing the petitioner under preventive detention.Â