Miyan Muzaffar v. UT of Jammu and Kashmir

This petition has been filed at the instance of the detenue by his wife, thereby, challenging detention order passed by District Magistrate Srinagar- respondent No. 2, bearing No. DMS/PSA/17/2024 dated 13.07.2024, for short impugned order, whereby detenue namely Miyan Muzaffer S/o Miyan Mohammad Yousuf R/o Barzulla Bulbulgagh, Srinagar, has been detained under the provisions of Section 8 of the Jammu & Kashmir Public Safety Act, Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 2 1978, hereinafter for short as Act, on the ground that his activities are prejudicial to the maintenance of Security of the State and directed to be lodged at district Jail, Kathua Jammu, where he is undergoing detention. FACTUAL MATRIX

The detenue was arrested during the intervening night of 13th/14th of July 2024, by police station, Saddar. Neither the detenue nor his family members were apprised about the reason of his arrest. It was in the morning hours of 14th of July 2024, the detenue was told that he has been detained under provisions of the Act. It is stated that detenue was not provided with the order of detention, grounds of detention or any other relevant documents, on the basis whereof the

impugned order was passed by the District Magistrate, Srinagar. Thereafter detenue was taken to District Jail, Kathua, where Superintendent of Jail provided him with a copy of the order of detention and grounds of detention, besides, a copy of communication no. DMS/PSA/Jud/97-1000/2024 dated

13.07.2024, issued by District Magistrate, Srinagar, whereby, the detenue was advised that he may inform the Home department, if he would like to be heard in person by the Advisory Board and also may make a representation against the order of detention, in pursuance to Sub Section (1) of Section 13 of the Act. It was only after the documents were furnished to the detenue, a representation dated 23.07.2024 was sent on 25.07.2024, by the wife of the detenue to the Principal Secretary to Government Home Department through post and by hand to District Magistrate Srinagar.

The petitioner has assailed the order of detention dated 13.07.2024 on the following grounds-: Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 3 (a) The detention order mentions about the dossier which was submitted by the Senior Superintendent of Police, Srinagar for issuance of warrant of detention, after examination of the dossier, District Magistrate passed impugned order, but the same has not been provided to the detenue. (b) The representation submitted to the Government as well as to the District Magistrate, Srinagar on 23.07.20 24, has not been considered by the respondents, and if at all considered the decision has not been communicated to the detenue. (c) The grounds which have been taken into consideration by the District Magistrate Srinagar, are not supported by any document produced before him. District magistrate Srinagar has passed order of detention on vague and irrelevant grounds.

Per Contra, respondents in their counter affidavit have stated that the detenue being close to Mian Abdul Qayoom was influenced by his ideologies, which made him a hardcore secessionist. The detenue became a prominent vocal voice, spreading secessionism and terrorism among the legal community and general public. He organised various seminars within the premises and provided a platform to secessionists and terrorists to preach their ideologies. The detenue met Mian Abdul Qayoom during his detention at Agra Jail and received orders from him to act as a spokesperson for terrorist and secessionist. He also visited several jails where the detenue spoke with terrorists and secessionists and promised them support in both High Court as well as in the Lower Courts. The detenue being a stanch anti-national element was constantly looking for opportunities to mobilise methods and means that could compromise the security of the Union Territory of Jammu & Kashmir and have been found involved in secretly devising programs for creating large scale Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 6 violence. Accordingly, the police concerned prepared a dossier and while finding the activities of the detenue prejudicial to the security of the state and since normal law of land is not sufficient to deter the detenue from his nefarious activities, therefore, SSP concerned forwarded dossier along with record to the detaining authority with the recommendation to order preventive detention of the detenue. The detention order dated 13-07-2024 was ordered with a view to prevent him from acting in any manner, which is prejudicial to maintenance of security of the state.

Pursuant to the detention order, the warrant was executed through concerned police on 14.07.2024, who handed over the detenue to Assistant Superintendent District Jail, Kathua, who took over the detenue against proper receipt and lodged him in the jail. The contents of the warrant were read over and explained to the detenue in his own language, which he understands. The detenue was informed about his right to make a representation to the District Magistrate as well as to the Government. The representation filed by the detenue after being considered by the Government has been found without any merit.

The Government after examining the impugned order and the material placed on record in exercise of powers conferred under Sub Section (4) of Section 8 of the Act, approved the detention order dated 13.07.2024, passed by the detaining authority. It is stated that the examination of material as well as detention order by the government as also by the Advisory Board, is sufficient to prove that the impugned order has been confirmed by the competent authority after due diligence and after following constitutional safeguards. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 7

It is also stated that in compliance to the direction passed by this Court, the detenue was given proper treatment and all prescribed medicines, which he has been taking prior to his arrest at district Jail Kathua. Moreover, the detenue was sent to Government Medical College for orthopaedic consultation and ENT consultation. Submissions made by learned Senior Counsel, Mr. R A Jan, for the petitioner.

Learned Senior counsel for the petitioner has stated that the grounds of detention are not only vague, but have no substance. The allegations levelled against the detenue are not specific. There is no material available with the respondents, on the basis of which impugned order could be passed by the detaining Authority. It is stated that an allegation without any material in support is merely an opinion and not a satisfaction arrived at by the detaining authority and no satisfaction can be arrived at without any supporting material. However, that satisfaction has to be arrived at after appreciation of material to reach to a specific conclusion. The allegations made in the grounds of detention are non-existent, unreasonable and unjustified. He has further stated that Syed Ali Shah Geelani died in the year 2019 and Yasin Malik is in jail since 2020. Mr. Mian Qayoom was a Bar president in the year 2016 and after that he was detained under J&K Public Safety Act and Mr. Ronga was made as an interim Bar president for few years and afterwards, Kashmir Advocates Association also came into being which has been registered since 2021. The detenue was never in the executive committee of the Bar and since 31 October 2019, there is absolute peace, as such, there is no live link or any proximity to the allegations made in the grounds of Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document 8 detention. Allegations are non-existent, illusionary on anvil of Law. It is also stated that the detenue was never made to appear before the Advisory Board. The detention order is perfunctory and has been passed mechanically and in a cavalier manner.

Learned senior counsel for the petitioner in support of his submissions has referred to and relied upon the Judgments reported as (1996) 6 SCC 593,