Srinagar (Jammu and Kashmir): The High Court of Jammu and Kashmir on Friday quashed the detention orders of Moulana Abdul Rashid Sheikh alias Dawoodi and Mushtaq Ahmed Bhat alias Veeri, who were booked under the Public Safety Act (PSA). Pertinently, both clerics were booked under PSA last year.
After hearing a petition filed by Dawoodi through his lawyer Asma Rashid, Justice Sanjay Dhar quashed the detention order and directed the authorities for his forthwith release.
"From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law," the court observed.
The court further said that "the petition is allowed and the impugned order of detention is quashed. The detainee is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case."
Earlier, the petitioner in his plea had claimed: "non-supply of relevant material and non-application of mind on the part of detaining authority while passing the impugned detention order, which prevented him from making an effective representation against his detention. From a perusal of the grounds of detention, which forms part of the detention record produced by the learned counsel for the respondents, it transpires that no FIR has been shown to have been registered against the petitioner."
Interestingly, the court points out that "two documents under the heading “Receipt of Ground of detention & relevant record” and “Executive Report” that is annexed with the detention record, suggests that 12 leaves of material comprising detention order (01 leaf), Notice of detention (01 leaf), grounds of detention (02 leaves), the dossier of detention (03 leaves), copies of FIR, statements of witnesses and other related relevant documents (05 leaves) have been furnished to the petitioner."
"Surprisingly, when no FIR is shown to have been registered against the petitioner, then how come 05 leaves of FIR etc. have been provided to him? This exhibits total non-application of mind and overzealousness on the part of the detaining authority, which casts serious doubt about the authenticity of the receipt.
"This contention gets further strengthened from the fact that as per the aforesaid “receipt of grounds of detention” the petitioner has been furnished with the dossier of detention (05 leaves) whereas, as per the detention record, the police dossier comprises only four leaves. These facts go on to show that the documents “Receipt of grounds of detention” and “Execution Report” appear to have been manipulated and, as such, the same cannot be relied upon," the court said.
"Thus, the contention of the petitioner that he has not been provided the relevant material appears to be well-founded. The aforesaid facts clearly show that there has been total non-application of mind on the part of the detaining authority which vitiates the impugned order of detention," the court said while pointing out that "the next ground projected by the petitioner is that he had submitted a representation against his detention but the same has not been considered by the respondent."
The court while ordering Dawoodi's release said, "It has been specifically contended by the petitioner that he had made a representation against his detention through his brother, which, seemingly, has been received by the office of District Magistrate, Anantnag, on 26.09.2022. The petitioner has specifically pleaded in the ground (iv) of his petition that he made a representation before the detaining authority. The detention record does not suggest that the said representation has been considered by the Government. The non-consideration of the representation indisputably amounts to the violation of constitutional safeguards provided by the provisions of Article 22(5) of the Constitution."
Meanwhile, Justice Rajnesh Oswal's court has ordered Mushtaq Ahmad Veeri to be released forthwith, provided he is not required in any other case.
While pronouncing the judgment, Justice Oswal remarked: "Taking into consideration the submissions made by learned counsel for the petitioner under instructions from the petitioner in respect of the voluntary offer of the petitioner to submit an undertaking, the petitioner is directed to furnish an undertaking before the District Magistrate concerned that the petitioner will not deliver any hate or anti-national speech on any occasion. The undertaking shall be furnished by the petitioner within the period of two days after his release from custody and the receipt of the same be furnished before the Registrar, Judicial of this court."
While reading the judgment before the parties in the High Court today, Justice Oswal observed: "It is stated that the petitioner was earlier detained vide order No. 81/DMA/PSA/DET/2018 dated 12.03.2019 under the Act and the order of detention was quashed by this Court vide order dated 03.06.2019. The petitioner has impugned the order of detention on the ground that the grounds of detention are identical to the grounds of detention on the basis of which the petitioner was earlier detained by the respondents. It is also stated that the order of detention is vague, bereft of specific details, as such no prudent and reasonable man can make effective and purposeful representation to the Government. It is further averred that the representation filed by the petitioner through his father has not been considered by the respondents."
The court further said, "The reply stands filed by the respondents wherein it has been stated that the petitioner is delivering Friday sermons in Jamia Ahil Hadees Sherbagh, Anantnag and is presently serving as Vice President of Jamiat Ahli Hadees. In the year 2016, he played a key role in instigating and provoking the youth resulting in the registration of FIR bearing No. 17/2016, FIR No. 168/2018 and FIR No. 228/2017."
It is further stated that the petitioner is continuously delivering anti-national speeches and taking into consideration his activities being prejudicial to the maintenance of public order, an order of detention was issued.
However, Veeri's counsel Shafaqat Nazir has argued in the court that the petitioner has never delivered and will never deliver any anti-national speeches. He further submitted that in the representation submitted by the petitioner through his father, it has been mentioned that the petitioner is a peaceful citizen of India and has never indulged in any anti-national activity.
He also submitted that he is under instructions from the petitioner that the petitioner is ready to furnish an undertaking that he would never make any hate or anti-national speech anywhere in the country, in any manner and mode, the court points out.
The Court also pointed out that "the record reveals that in the grounds of detention, respondents have relied upon three FIRs i.e., FIR No. 17/2016, FIR No. 168/2018 and FIR No. 228/2017. A perusal of the grounds of the detention prepared earlier by the District Magistrate Anantnag pursuant to which the detention order dated 12.03.2019 was issued, reveals that these three FIRs which have been relied upon by respondent No. 2 while issuing the present order of detention were also relied upon by the District Magistrate in the year 2019. More so in the grounds of detention as well as in the dossier submitted by respondent No. 3 to respondent No. 2, there is no whisper that the petitioner was earlier detained under the Act on the basis of these three FIRs and the said order of detention was quashed."
"Perusal of the grounds of detention also reveals that the same is vague more particularly in respect of allegations levelled against the petitioner that he was delivering anti-national speeches. No date, month and year of the alleged delivering of anti-national speeches has been mentioned in the grounds of detention. Law is well settled that order of preventive detention cannot be issued on vague grounds as it disables the detainee to make effective and purposeful representation against the same," the Court further points out.
Interestingly, both the clerics are residents of south Kashmir's Anantnag district and were booked under PSA on the same day - September 13, 2022
Also read: High Court of J&K and Ladakh allows temporary shelters at Sonamarg for Amarnath Yatris
