J.P. Singh, J.
1. District Magistrate Udhampur's Order No. PSA-2006/9 dated 14.09.2006, directing Rukhsar Ahmad Wani's detention for a period of two years under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 has been questioned by the detenue in this petition filed through Gul Mohd. Mr. H. Rehman learned Counsel for the petitioner says that the detention order suffers from non-application of mind of the detaining authority besides being unwarranted and unconstitutional as it offends Section 13 of Public Safety Act and Article 22(5) of Constitution of India. Learned Counsel submits that there was no material worth the name justifying detention of the petitioner.
2. Respondents have not filed any counter-affidavit to controvert the case set up by the petitioner in his petition. The State counsel, Mr. B.S. Slathia AAG has, however, produced the detention records to justify the detention of the petitioner.
3. I have considered the submissions made at the Bar by the learned Counsel for the parties and have perused the detention records. The petitioner has been detained on the grounds which read thus:
Grounds of detention in respect of Rukhsar Ahmad Wani S/o Abdul Salam Wani R/o Kadwa Tehsil Ramnagar District Udhampur (Jammu) at present Sambal Danga Shiv Nagar Ward No. 11 Udhampur.
Whereas, you being a hardcore and dangerous over ground worker of HMT LeT militant outfit operating in the areas of Basantgarh, Latti and other adjoining areas of District Udhampur and elsewhere in the State of Jammu & Kashmir by having a close links with the LeT and HM militants and provides aid, shelter and other help to them in accomplishing the terrorist and subversive activities in order to over-awe the Government as by law established and to spread scare and alarm among the general public with the plan to cause killings, destruction of property by causing explosions and by using lethal/fire arm weapons. Whereas, you were acting as a courier and harbour of militants at your residence at Udhampur for the last three years and has also acted as their informer. Your activities are dangerous and detrimental to the security of the State.
Whereas, you were having close links in the past with a trained Pakistani militant of HM outfit namely Bittu code Akram s/o Slier Mohd R/o Kadwah, Tehsil Ramnagar who has surrendered before Kathua Police, Your brother namely Liaqat Ali code Zia-Ul-Haq was also a Pakistani trained militant was killed in an encounter in Poonch five years back. The killing of Liaqat Ali militant and the surrender of militant Mustaq Ahmed did not deter or have any impact upon you and you were so indoctrinated that you continue with the militants activities and is associated with one Mohd. Assadullah Tahir code Idrees S/o Shamas Din R/o Khog. presently Finter, Tehsil Billawar, District Kathua. who was an HM militant in the past and now he is associated with LeT militant outfit;.
Whereas have managed a mobile phone No: 9419159881 9419159881 from BSNL Udhampur Division to have close contacts with the militants operating in Udhampur District and elsewhere in the state and to pass on the information regarding the movement of Security Forces and the operations to the militants; You with a concerted plan and a design to facilitate the commission of the militant activities handed over mobile phone No. quoted above to LeT militant Mohd Assadullah Tahir code Idrees from whose possession your mobile has been recovered by Jammu Police in case HR No. 70/2004 U/S10/12 Criminal Law Amendment Act, 1983, 13 Prevention of unlawful activities Act at Police Station Peer Mitha, Jammu alongwith the Hawala Money amounting to Rs. 2,39,500/- and the case is under investigation;
Whereas, you and your associate Mohd Assadullah Tahir code Idrees have made frequent calls and have also received calls within the state from the militants operating from Anangnag, Doda, Kishtawar, Baderwah, Latti, Mahore, Kathua, Billawar and Jammu etc. You and your associate have received calls from foreign countries from the militants/anti-national elements from foreign lands i.e. from Pakistan, Bangladesh (Dacca) Dubai and Sharjah and also from Vijaywada, Hydrabad (AP) in outside the state;
Whereas, you and your associate Mohd Assadullah Tahir code Idrees were taken into custody on 21-1-2005 and 22-2-2005 respectively for your involvement in militant/subversive activities in Case FIR No: 21/2005 under Section 212/216/120B/121/121A/122 RPC, 13/18/19/20 Prevention of Unlawful Activities Act, 1967 read with Unlawful Activities (Prevention) Ordinance, 2004 and 10/11 Criminal Law Amendment Act, 1983 Police Station Udhampur and a live hand grenade was recovered at the instance of your LeT associate Mohd Assadullah Tahir code Idrees from Darsoo, Udhampur. The investigation of the case is in progress. Your said associate has been detained under Public Safety Act, vide order No. 7/PSA of 2005 dated 14/3/2005.
Whereas your activities relating to aiding, abetting and harbouring the militants and to establish an organized racket/network for indulging in terrorist and subversive activities in District Udhampur with the aim and object of cession of the state from the Union of India by force to overawe the Government and by law established are highly detrimental and prejudicial to the security of the state.
Whereas, in view of the above, I am satisfied that your activities are highly prejudicial to the security of State. Your activities are anti-national, subversive and prejudicial to the security of the State. Therefore, you are detained in the Kot Balwal Jail, Jammu for a period of two years under the provisions of Public Safety Act, 1978.
4. These grounds do not reflect any source or material which had been relied upon by the District Magistrate to draw these grounds. The records produced by Shri Slathia too do not contain any material on the basis whereof these grounds could have been drawn by the learned District Magistrate.
5. In a Habeas Corpus Petition, it is the detaining authority, on whom the burden lies to satisfy the court that the detention was justified and in doing so, it is required to place on record such material on the basis whereof the grounds of detention could be justified.
Such material having not been produced by the detaining authority and non-filing of counter-affidavit by the respondents thus leaves this Court with no other option except to conclude that the grounds of detention were not based on any material and hence unjustified. The detention order impugned in this petition, therefore, becomes unsustainable.
6. When a person is already in custody, a detaining authority is required to spell out the grounds or reasons which would justify implanting of a preventive detention order despite the detenue being already in custody. No such reasons have been mentioned by the District Magistrate in the present case.
7. Learned District Magistrate has not mentioned either any source or material on the basis whereof he had drawn the grounds of detention. Non-disclosure of the source or material, unless, however, the detaining authority exercises his power to dispense with the requirement of disclosing grounds of detention under Section 13(2) of the Public Safety Act, in public interest, renders the detention unconstitutional for it deprives the detenue his light of making an effective representation against his detention.
8. For all what has been said above, the present case demonstrates non-application of mind of the detaining authority in detaining the petitioner in preventive custody and depriving him of his right to liberty. The detention of the petitioner is, therefore, liable to be quashed.
9. Allowing this petition I would accordingly quash Order No. PSA-2006/9 dated 14.9.2006 of District Magistrate Udhampur and direct his release from the custody forthwith, if not required by the respondents in any other case.
10. Detention records shall be returned to the State Counsel.