Delhi High Court Rejects JeM Militant's Plea For Transfer From Tihar To Srinagar Jail

The Delhi High Court has rejected the petition filed by a Jaish-e-Mohammad (JeM) militant Abdul Majeed Baba, who is serving life imprisonment in a UAPA case, for transfer from Tihar jail to his native state jail in Srinagar.

Justice Poonam Bamba however directed the Superintendent of Tihar Jail to ensure that requisite treatment and medical care be continued to be provided to Baba, who is 66 years old. Seeking transfer to Srinagar Central Jail, Baba had submitted that his health is deteriorating every day and his family members are unable to visit him from Kashmir.

Baba, a resident of Jammu & Kashmir, is lodged in a high risk ward in Central Jail, Tihar. He was convicted and sentenced to life imprisonment for the offences under sections 120B, 121A, 122 and 123 of IPC and sections 17, 18, 20, 21 and 23 of UAPA. His conviction was upheld by the Supreme Court in February 2020.

Submitting that being close to his family would help him recover better, the counsel representing Baba argued that rules 664 and 672 of the Delhi Prison Rules provide for transfer of prisoners on humanitarian as well as medical grounds. Abdul's application for transfer had earlier been rejected by Delhi's Lieutenant Governor on September 24, 2021.

Baba's plea was opposed by the prosecution on the ground that he was a hard core militant of a banned terrorist organization JeM and had absconded during pendency of his appeal before High Court when he was released on bail.

The court was informed that Abdul remained absconding for a long time and repeated non bailable warrants could not be executed for a period of six years from 2013 to 2019. The prosecution submitted that a reward of Rs. two lakhs was declared for his arrest after which he was arrested from Srinagar on May 11, 2019.

There is every likelihood of Baba managing to flee from any other jail, considering his past conduct, the public prosecutor submitted.

"The petitioner being a hard core militant of banned terrorist organization Jaish-e-Mohammad (JeM) his transfer may have law and order repercussions in both, the transferring and thereceiving state. The petitioner's request for transfer to Srinagar Jail was rightly declined after duly considering the above facts and circumstances as well as the past conduct of the convict," the State argued. 

Baba's counsel in response submitted that he could not surrender to the police as he was under constant treatment at a hospital in Srinagar.

The prosecution referred to a security advisory issued by the Ministry of Home Affairs of September 2015 for shifting of high risk prisoners from the jail of one state or union territory to another jail of a different state or union territory.

Perusing the said advisory, the court noted that the government "has to be cautious" in transfer of high risk prisoners convicted in terror related cases taking into account the "security implications of such transfers in both, the transferring and the receiving state/UT."

"No doubt, Rules 664 and 672, Delhi Prison Rules, 2018 provide that the prisoner may be transferred from one prison to another on medical and humanitarian grounds with prior approval of the State Government. However, in view of the above facts and circumstances and taking into account the apprehension of law and order repercussions expressed by the State pursuant to evaluation of the security risk in transfer of the petitioner from Central Jail Tihar, Delhi to Srinagar Central Jail, this court is not inclined to grant the prayer of the petitioner," the court said.

On Baba's concern regarding his ill health, the court noted that according to the report of the Medical Officer in Charge of Tihar jail dated September 6, he is being provided medical care and treatment.

"The Superintendent Jail is further directed to ensure that requisite treatment/medical care be continued to be provided to the petitioner. Petition is disposed of accordingly," the court said.

Title: ABDUL MAJEED BABA v. STATE (NCT OF DELHI) & ORS.

Citation: 2022 LiveLaw (Del) 1091

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