J&K&L High Court upholds detention of man who posted content to promote terrorism, radicalize youths

The Jammu & Kashmir and Ladakh High Court recently refused to interfere with the detention order of one Waseem Ahmad Dar @Leepa who was placed under preventive detention so as to prevent him from indulging in the activities which are prejudicial to the security of the State.

A single judge bench of Justice Sanjay Dhar found no ground to interfere with the impugned order of detention.

The detention order issued on February 10, 2024 by District Magistrate, Kupwara, in exercise of powers conferred by Section 8 of the J&K Public Safety Act, 1978, was alleged to be is illegal, unconstitutional and bad in law and the same has been passed in breach of the mandate of constitutional law and procedural safeguards.

It was contended that the detaining authority, while passing the impugned order, had not followed the procedural safeguards as provided under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act and the order was passed without application of mind as the grounds of detention are vague, non-existent and stale, on which no prudent man can make a representation against such allegations.

It was further contended that whole of the material has not been provided to the petitioner and that the representation submitted by the petitioner against the impugned detention order has not been considered and the result of consideration has not been conveyed to him. 

The UT administration argued that the activities of the detenue had been found prejudicial to the security of the State. It was pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It had been further contended that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. 

Further it was averred in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

Justice Dhar found on a perusal of the detention record that the petitioner had been furnished a total of 23 leaves comprising copy of warrant (01 leaf), grounds of detention (02 leaves), notice of detention (01 leaf), letter addressed to the Financial Commissioner Home Department, J&K (01 leaf), copy of dossier (02 leaves), copies of other relevant documents annexed with dossier (08 leaves), copy of complaint under Section 107/151 Cr. P. C dated 19.09.2023 of Police Station, Pethkote Bandipora and order dated 19.09.2023 issued by the Executive Magistrate 1st Class, Bandipora (02 leaves) and copy of Urdu translation of detention order/grounds of detention (06 leaves). 

"If we have a look at the grounds of detention, the detaining authority has relied upon the complaints filed by the police against the petitioner under Section 107/151 of Cr. P. C and videos uploaded by the petitioner on his Facebook. Not only the copies of the complaints and the orders passed thereon by the Executive Magistrate concerned have been furnished to the petitioner but along with the copy of dossier, the detaining authority has provided the screenshots of the Facebook pages of the petitioner in support of their allegation that the petitioner has been uploading the contents with a view to promote terrorism and radicalize the youth. Thus, it cannot be stated that the petitioner has not been provided whole of the material that formed basis of the grounds of detention", the single judge bench further noted.

It was further found that while formulating the grounds of detention, the detaining authority had narrated the background of the petitioner by incorporating the facts narrated in the police dossier.

"However, after narrating the background facts, the detaining authority has clearly framed its opinion that the activities of the petitioner are highly prejudicial to the security of the Union Territory of the Jammu and Kashmir. So, it is not a case where the detaining authority has mechanically copied the contents of the police dossier while formulating the grounds of detention but it is a case where the detaining authority has applied its mind to the police dossier and the material annexed thereto, whereafter it has framed its opinion that it is imperative to detain the petitioner under the provisions of the J&K Public Safety Act. The contention of the petitioner that the detaining authority has acted in a mechanical manner is, therefore, misconceived", High Court further found.

On the allegation that the authorities had not resorted to the procedure under normal criminal law but had straightaway taken the petitioner into preventive custody which is not permissible in law, court noted that no FIR had been lodged against the petitioner nor it is a case where the petitioner was on bail. "Thus, there was an occasion for the respondents to apply for cancellation of his bail. It is a case where apprehension of the detaining authority with regard to the alleged activities of the petitioner was based upon the reports received from different agencies which included the videos uploaded by the petitioner on his Facebook account. It is on the basis of these anti-national videos/photos/posts/chats which were uploaded by the petitioner on his Facebook account that the detaining authority was satisfied that it is necessary to detain the petitioner in order to prevent him from indulging in the activities which are prejudicial to the security to the State. There was no occasion for the respondents either to resort to normal criminal law or to seek cancellation of his bail. The contention of the petitioner in these circumstances is not tenable in law.", the bench added.

Case Title: WASEEM AHMAD DAR Vs. UT OF J&K & ORS.