Similarity Of Grounds With Police Dossier Not Enough To Quash Preventive Detention Unless Non-Application Of Mind Shown: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that merely because certain factual recitals in the grounds of detention resemble portions of the police dossier, the detention order cannot be quashed unless the Court finds that the detaining authority acted mechanically and failed to independently apply its mind to the material before it.The Court was hearing a habeas corpus petition filed under Article 226 of the Constitution of India by a detenu through his wife, challenging Detention Order No passed by the District Magistrate, Baramulla, under Section 8(a) of the Jammu & Kashmir Public Safety Act, 1978. The detenue was alleged to be an Over Ground Worker affiliated with the banned terrorist outfit Lashkar-e-Taiba and accused of providing logistical support, transportation and shelter to terrorists operating in Sopore and adjoining areas. A Bench of Justice Wasim Sadiq Nargal, while dismissing the petition, observed, “... Merely because certain factual recitals occurring in the grounds of detention resemble portions of the police dossier would not, by itself, be sufficient to invalidate the detention order. Similarity in language cannot be elevated to a conclusive proof of non-application of mind unless the Court arrives at a finding that the detaining authority mechanically reproduced the dossier without independent consideration of the material. No such inference, in the facts of the present case, can reasonably be drawn.” The detention order was passed on the allegation that the detenue was an active Over Ground Worker of Lashkar-e-Taiba who had continued to provide logistical assistance, transportation, shelter and other support to terrorists, while also maintaining contact with Pakistan-based handlers through encrypted communication applications and proxy networks. The petitioner challenged the detention order on multiple grounds. It was contended that the grounds of detention were a verbatim reproduction of the police dossier, that relevant material relied upon by the detaining authority was not supplied, that the allegations were vague; that preventive detention could not be invoked when ordinary criminal law remedies were available and that there was no live and proximate link between the alleged activities and the detention order. The respondents argued that the detenue was a radicalised Over Ground Worker posing a serious threat to the security of the Union Territory, that all constitutional and statutory safeguards had been complied with, and that the detenue had in fact submitted a representation against the detention order which was duly considered and rejected. Court's Observations: Adjudicating the matter the High Court reiterated that while preventive detention constitutes a serious encroachment upon personal liberty under Article 21 of the Constitution, the scope of judicial review remains limited to examining whether procedural safeguards were followed, whether the detention was based on relevant material, and whether the subjective satisfaction was vitiated by arbitrariness, mala fides or non-application of mind. The Court also found no merit in the challenge to the Government's approval under Section 8(4) of the Public Safety Act, holding that the approval had been granted within the statutory period and that any alleged deviation in internal governmental procedure could not invalidate substantive statutory action in the absence of demonstrated prejudice. On the principal contention regarding reproduction of the police dossier, the Court observed that some degree of similarity is natural because the sponsoring agency necessarily supplies the factual material to the detaining authority. The crucial question is whether the authority acted merely as a conduit of the police or independently evaluated the material before recording its subjective satisfaction. After examining the detention record, the Court found that the material considered by the District Magistrate was not confined to FIR No. 203/2018. It included the detenue's antecedents, preventive proceedings under Sections 107/151 CrPC and corresponding BNSS provisions, intelligence inputs regarding continuing association with Lashkar-e-Taiba operatives, use of encrypted communication applications, and contacts with Pakistan-based handlers. The Court also noted that the detaining authority had taken into account the fact that the detenue had already been granted bail in the substantive criminal case, but was alleged to have continued activities prejudicial to the security of the Union Territory. The Bench further pointed, “… The detention order also reflects consideration of the prevailing security situation in the Valley, particularly in the aftermath of the Pahalgam terror attack involving killing of tourists, and the apprehension that the detenue could be reactivated for furthering terrorist objectives”On the issue of supply of documents, the Court found from the execution report that the detenue had been furnished the...

Similarity Of Grounds With Police Dossier Not Enough To Quash Preventive Detention Unless Non-Application Of Mind Shown: J&K&L High Court

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Similarity Of Grounds With Police Dossier Not Enough To Quash Preventive Detention Unless Non-Application Of Mind Shown: J&K&L High Court

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