JUDGMENT
Hakim Imtiyaz Hussain, J.
1. This Habeas Corpus petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir has been filed by one Khazir Mohammad Beigh S/o Abdul Gani Beigh R/o Chatterhama Zakoora Srinagar for the release of his brother who has been detained by the District Magistrate, Srinagar under the provisions of Jammu and Kashmir Public Safety Act, 1978.
2. It is alleged that the detenue was arrested on 4.1.2006 and ever since he is in the custody of the respondents. He is lodged in Kotbalwal Jail Jammu. It is further stated that the detenue is affiliated with a regional main stream political party having set exemplary conduct for other politicians he has not conducted himself in any manner unbecoming of a responsible and law abiding citizen nor has he indulged in any act or omission made penal by the laws of the land for the time being inforce. The petitioner further alleges that the said detenue has been detained under the provisions of Jammu and Kashmir Public Safety Act under Order No. DMS/PSA/80 of 2006 dated 2.2.2006 passed by District Magistrate Srinagar. The order of detention has been challenged on various grounds interalia that there was absolutely no material muchless any cogent material before the detaining authority for passing the order impugned. It is further stated that the grounds of detention have allegedly been passed on the material supplied by the Senior Superintendent of Police, to the detaining authority. The petitioner further stated that the grounds of detention are vague, omnibus, general and have been passed on irrelevant considerations.
3. Respondents have in the counter filed by the District Magistrate, Srinagar stated that the activities of the detenue which are highlighted in the grounds of detention were prejudicial to the security of the State as such the detenue was detained under the provisions of Public Safety Act. Respondents have further stated that the grounds of detention are precise, proximate, pertinent and relevant and that there is no vagueness or staleness as indicated by the petitioner.
4. Heard, I have considered the matter and have perused the record which was made available by the Counsel appearing for the State.
The detenue Mohd. Maqbool Beigh has been detained vide order No. DMS/PSA/80 of 2006 dated 2.2.2006 on the following grounds:
Whereas, perusal of record provided by Senior Superintendent of Police, Srinagar reveals that you are affiliated with Let, outfit operating in the State. The outfit consists mostly of foreign terrorists but to aid, assist and facilitates the foreign terrorists, a large network of locals have been established and you are an important member of the network. The aim and objective of the organisation is to secede the State of Jammu and Kashmir from the Union of India and to annex it with Pakistan. In order to achieve its objective the organisation has started an armed struggle.
Whereas, in the year. 2004 you came into contact with one Khalid Bhai R./o Pakistan. District Commander of LeT Chattterhama, Khalid Bhai asked you to provide logisitic support to foreign terrorists operating in the area, since you were already influenced by the secessionist ideology. You readily agreed and thereafter Khalid Bhai alongwith one Khataba R/o Pakistan and Javeed Bhai R/o Pakistan used to come to your house regularly. During this process Khalid Bhai motivated you to work for Let outfit in addition for providing logistic support to foreign terrorists in Chatterhama area. You also started to dump and transport arms/ammunition form one place to another. You were arrested several times for your links with terrorists. You were lastly arrested in January, 2005 by P/S Harwan and one wirelsss set, seven RCDs and 10 detonators were recovered from your possession. In this regard case FIR No. 11/05 Under Section 7/26 Arms Act stands registered in P/S Harwan which is under investigation. After your release you did not shun the path of violence and continued to indulge in anti-national activities. Whereas, in the first week of August, 2005 Khalid Bhai visited your house and asked you that there is a pressure upon him from pro. Hafiz Syed R/o Pakistan (Chief Commander of Let.) regarding the assassination of the then Hon’ble Chief Minister of J&K Mufti Mohammad Syed. You told Khalid Bhai that Abdul Waheed Dar (Councilor of PDP) can be of help in assassination of Hon’ble Chief Minister. Accordingly conspiracy the details of the attack were worked out and it was decided that the attack would be carried out on the eve of Independence Day on 15th August, 2005 at Bakshi Stadium. In pursuance to this conspiracy on 10th August, 2005 Waheed Ahmad Dar and one suicider attacker Farooq Ahmad R/o Pakistan conducted the race of Bakshi Stadium and A mar Singh College so that the attack could not be carried out on 15th’ of August as per plan. However, the attack could not be carried out on 15th August, as the vehicles meant for carrying the suicidal attackers to Bakshi Stadium developed some mechanical problem.
Whereas, after failing to execute the conspiracy Khalid Bhai again contacted you on phone No. 2262433 after IDD and asked you that the CM is to be targeted at any cost. You told Khalid Bhai that Mufti Mohammad Syed is going to lay a foundation stone of SOS children Village, Ganderbal and it would be an opportune time and occasion to target him. Accordingly you alongwith Abdul Waheed Dar (PDP Councilor) Waheed Dar R/o Chatterham and Khalid Bhai hatched a conspiracy to carry out a suicidal attack on Mufti Mohammad Syed in Ganderbal at SOS children Village, Ganderbal. Two suicidal attackers namely Mohd. Shafi and Ishfaq Ahmad both residents of Pakistan were selected for the purpose. However, that attack could not be carried out on the said date because of the tight security maintained on spot.
Whereas, the conspiracy was unearthed when you were arrested in case FIR No. 121/05 Under Section 302, 307, 120B RFC (Suicidal attack on Peak View Motel) for being a suspect in the said case. During the interrogation you revealed the details of the conspiracy and accordingly case FIR No. 2/06 Under Section 18 CLA (P) Act, 121A, 120B RPCwas registered in P/S Maisuma which is under investigation. During the investigation of the case FIR No. 121/05 two detonators were recovered at your instance from Chatterhama. You are presently lodged in P/S Maisuma under proper remand in case FIR No. 121/05 at P/S Maisuma.
It is clear that your activities are highly prejudicial to the maintenance of the security of the State. Under such compelling circumstances, it has become imperative to detain you under Public Safety Act, 1978 for which orders are being issued separately.
5. Perusal of the record would show that the grounds of detention is a verbatim copy of the dossier from the middle of the first page of the dossier to the end. A minute perusal of the grounds of detention as well as dossier of SSP would show that the words the subject used in the dossier have been changed as you and your in the grounds of detention. Rest of the contents of the two documents is almost the same which shows the District Magistrate has not considered any other material besides the dossier to come to a subjective satisfaction and while considering the dossier he has not applied its mind except reproducing it in the grounds of detention. Thus there appears complete non. application of mind on the part of District Magistrate while directing preventive detention of the detenue. It is further revealed from the record that the detenue was detained vide order dated 2.2.2006 while as he was taken in the custody by the police earlier to that date thus on the date the order of detention was made the detenue was already in the custody of the State in FIR No. 121/05 and 2/06 under Section 302. 307, 120B RPC. The detaining authority has not given compelling reasons on the basis of which the detenue has been taken into preventive detention.
6. In T.P. Moideen Koya v. Govt. of Kerala 2004 (8) 106 it was observed that the very object of passing the detention order being to prevent the person acting in any manner prejudicial to the maintenance of public order normally there would be no requirement or necessity of passing such an order against a person who is already in custody in respect of criminal offence where there is no immediate possibility of his being released. The Apex Court has further observed that in law there is no bar in passing a detention order even against such a person if the detaining authority is subjectively satisfied from the material placed before him that a detention order could be passed.
7. Thus the authority while passing preventive detention has to give the compelling circumstances on the basis of which he proceeds to direct preventive detention of the detenue.
8. Since no compelling reasons have been recorded by the detaining authority in the present case, I find the order impugned cannot stand. The petition is, therefore, allowed and detention order No. DMS/PSA/80 of 2006 dated 2.2.2006 by means of which the detenue Mohd. Maqbool Beigh S/o Abdul Gani Beigh R/o Chatterhama, Zakoora Srinagar has been placed under preventive detention is hereby quashed. Respondents are directed to release the detenue forthwith in the present case, provided he is not required in any other case.
9. Record produced by Ld. Dy. AG is returned to him in the open court.