Srinagar, Sep 8: The High Court of Jammu Kashmir and Ladakh on Friday quashed the detention of Moulana Abdul Rashid Dawoodi and Moulana Mushtaq Veeri who were booked under Public Safety Act (PSA) in September last year.
Allowing their pleas, two separate benches of Justice Sanjay Dhar and Justice Rajnesh Oswal ordered the immediate release of the Islamic scholars from the preventive custody provided they were not required in connection with other cases.
While Dawoodi was booked under PSA “in terms of an order dated 13.09.2022, issued by District Magistrate, Anantnag, Veeri was detained by an order dated 13.09.2022 passed by the District Magistrate.”
In their pleas both the detainees challenged their detention on various grounds.
“From a perusal of the grounds of detention, which forms part of the detention record produced by the learned counsel for the respondents (authorities), it transpires that no FIR has been shown to have been registered against the petitioner,” the Court said in case of Dawoodi.
“However, two documents under the heading “Receipt of Ground of detention & relevant record” and “Executive Report” that are 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), dossier of detention (03 leaves), copies of FIR, statements of witnesses and other related relevant documents (05 leaves) have been furnished to the petitioner,” it added.
“Surprisingly, when no FIR is shown to have been registered against the petitioner, then how come 5 leaves of FIR etc. have been provided to him,” Court said.
The Court noted that “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, the court said, gets further strengthened from the fact that as per the “receipt of grounds of detention” the petitioner has been furnished with a dossier of detention (5 leaves) whereas, as per the detention record, the police dossier comprises only four leaves.
The Court underscored that these facts go on to show that the documents “Receipt of grounds of detention” and “Execution Report” appeared to have been manipulated and, as such, the same could not be relied upon.
“Thus, the contention of the petitioner that he has not been provided the relevant material appears to be well-founded. The 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,” Court said.
With regard to the representation made by the petitioner against his detention, the Court said: “……the nonconsideration of the representation indisputably amounts to violation of constitutional safeguards provided the provisions of Article 22(5) of the Constitution”.
“Viewed thus, the petition is allowed and the impugned order of detention is quashed,” said Justice Sanjay Dhar while quashing detention of Dawoodi.
In his plea Veeri contended that he was earlier detained in terms of a detention order “dated 12.03.2019 under PSA and the same was quashed by Court vide order dated 03.06.2019.”
Besides other grounds, he challenged the order of detention passed against him in September 2022 on the ground that his grounds of detention were identical to the grounds of detention on the basis of which he was earlier detained under PSA.
Opposing the plea, the government stated that Veeri was delivering Friday sermons in Jamia Ahli Hadees Sherbagh, Anantnag and was 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,” government said.
The Government also said the petitioner was 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.
“A perusal of the record reveals that in the grounds of detention, respondent No. 2 (DM Anantnag) has 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,” bench of Justice Oswal said.
“It was incumbent upon the sponsoring agency to have brought to the notice of respondent No. 2, the earlier order of detention which was quashed by the Court”, the bench said.
Underscoring that perusal of the grounds of detention also reveals that the same are vague more particularly in respect of allegations leveled against the petitioner that he was delivering anti-national speeches, the court said. “No date, month and year of the alleged delivering of anti-national speeches have been mentioned in the grounds of detention”.
Law, the court said, is well settled that order of preventive detention cannot be issued on vague grounds as it disables the detenu to make effective and purposeful representation against the same.
While quashing the detention order “dated 13.09.2022” against Veeri, the court said: “However, 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,” the court said.
Meanwhile the bench of Justice Sanjay Dhar quashed detention under PSA against Bilal Ahmad Hastiwala who was booked in terms of order “dated 12.04.2022 passed by District Migesterate Ganderbal” against him.
The Same bench also quashed the detention order “dated 07.04.2022” passed by District Magistrate Pulwama under PSA against Yawar Rashid Ganai of Gudoora District Pulwama.
The Court also quashed the detention order passed under PSA against Bilal Ahmad Bhat of Bhat Mohalla Wuyan Khrew District Pulwama by District Magistrate Pulwama “in terms of order dated 25.06.2022.”
The Court directed the authorities to release the trio forthwith, if they were not required in other cases.