MOHD IBRAHIM GUJJAR Vs. UNION TERRITORY OF J&K

JUDGEMENT

(1.) Petitioner by invoking the jurisdiction of this Court in terms of Article-226 of the Constitution of India, has sought the indulgence of this court for issuance of writ of Habeas Corpus with the prayer for quashment of the impugned detention order No. DMR/45-50 dtd. 27/4/2022 issued by the respondent No. 2 (District Magistrate Ramban) for detaining the petitioner u/s 8 of the J&K Public Safety Act 1978 and further commanding the respondent No. 3 to release the petitioner from Central Jail Kot Bhalwal Jammu on the following grounds:-

(2.) Respondent No. 02 has filed a counter affidavit, wherein, it has specifically contended, that keeping in view the prejudicial activities of the detenue, his preventive detention has been ordered so as to deter him from acting/indulging in prejudicial activities, the impugned order of detention does not suffer from any malice or legal infirmity, as such, challenge thrown to it is totally misdirected and misconceived; petitioner has concealed material facts, as right to liberty is not an absolute right and it is subjected to reasonable restrictions as envisaged under Article-22(2) of the Constitution of India, thereby, petition is not maintainable and deserves to be dismissed. It is contended, that Superintendent of Police Ramban vide communication No.CB/DOSSER/21/5005 dtd. 20/4/2022 submitted a dossier of activities recommending a case for detention of Mohd lbrahim S/O Noora Gujjer R/O Krawah Tehsil Banihal District Ramban under the provisions of J&K Public Safety Act 1978, the dossier has been examined in light of legal provisions and circumstances related to the case the details of which have been furnished by the District Police, the subject is reportedly involved in anti-national/anti-social activities creating law and order problems in Banihal, the subject made an attempt to promote enmity between two different religious groups which in turn could spiral wave of violence and hatred between different social/religious groups; the subject is reported as notorious criminal and is one of the sympathizers and well-wishers of the outlawed of Jammu and Kashmir Hurriyat Group which aims to liberate the UT of J&K from Union of India by means of anti-national/anti-social/criminal activities, the subject is involved in anti-national activities within the jurisdiction of Police Station Banihal and its surrounding areas; the subject is involved in organizing Hartals/Bandhs in Banihal area on the instance and call given by the Hurriyat leaders from Kashmir Valley. It is contended that the subject is instigating the people of the Banihal area especially the youth against the democratically established Government of J&K and Union of India, the subject forces and instigates youth of the area to raise anti-national slogans against the Government of J&K as well as Union of India and in favour of the alien country i.e. Pakistan thereby creating hostile atmosphere in the Banihal area and its surroundings; due to his active instigation, abetment and provocation the strikes are being organized with the association of other likeminded persons of the area; there is every apprehension of law and order problem as well as anti-national rallies in Banihal area which will vitiate peaceful atmosphere having both communities i.e. Muslims and Hindus; the subject is a history sheeter and involved in number of cases at Police Station Banihal; the subject in connivance with likeminded people of the area has been conducting meetings at unknown places with the intention to instigate the youth against the Nation and to direct them to the obsession of so-called freedom and if he remains free in society, he would definitely indulge in criminal activities and would be danger to public peace and tranquility, the presence of subject in society is certainly prejudicial to the maintenance of public order, peace, tranquility and safety of citizens of the area.

(3.) Mr. Bari Abdullah, learned counsel for the petitioner has sought the setting aside/quashment of the impugned detention order by vehemently canvassing arguments, that petitioner/detenue has not been supplied the copy of FIR, recovery memos, statements if any recorded under Sec. 161 Cr.P.C. and other incriminating material collected by the police during investigation based on which the detention order has been passed nor its translated script in the language (Gojri) which is understandable by the petitioner which is mandatorily required under article 22 (5) of the Constitution of India for making a representation to the competent authority against the order of detention, thus the order of detention is rendered invalid on this ground. It is vehemently argued, that the manner in which the respondent no. 2 has passed the detention order clearly demonstrates he has used this sec. arbitrarily to detain the petitioner which is illegal, the impugned detention order and the list of cases attached with it are in the English language, whereas, the petitioner/detenue only understands Gojri language, the detention order was not read over and explained to the petitioner in Gojri language which is a pre-requisite for maintainability of the detention order, the non-supply of detention order and all other documents in Gojri language violates the provisions of law as such the detention order deserves its quashment.