Not Mentioning Grant Of Bail In Detention Order Is Serious Lapse, Gives Rise To Inference Of Non-Application Of Mind: J&K High Court

Quashing a detention order the Jammu and Kashmir and Ladakh High Court has recently highlighted that the non-mention of the petitioner's bail status indicates a clear non-application of mind, rendering the detention order unsustainable in the eyes of law.“While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Nonmention about the grant of bail in the detention is serious lapse which in turn gives rise to the inference that there is non-application of mind”, a bench of Justice Puneet Gupta emphasised. Case Background:Owais Naseer Sheikh, a resident of Sangrama Sopore in Baramulla, was placed under preventive detention by the Divisional Commissioner, Kashmir. The order, issued under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, led to Sheikh's incarceration in Central Jail Kotbalwal, Jammu. Sheikh's brother, Shafqat Nisar, challenged the detention order, seeking its quashment on several grounds.The petitioner's counsel, Ms. Palvi, argued that Sheikh had been granted bail in two FIRs (No. 97/2018 and No. 60/2023) related to narcotic drug offenses, and this fact was omitted in the detention order.It was further argued that the grounds for detention were a verbatim reproduction of the police dossier, lacking independent application of mind.The respondents, represented by Ms. Maha Majeed, Assistant Counsel, contended that Sheikh was part of an organized drug trafficking gang involved in serious narcotic activities.The detention was necessary to prevent his activities, which were detrimental to the public, particularly the youth, they argued.Court Observations:Justice Gupta noted that the detaining authority failed to consider Sheikh's bail status, which was a critical oversight. The court emphasized that while ordering preventive detention, all relevant circumstances must be thoroughly analyzed. The omission of Sheikh's bail status from the detention order suggested non-application of mind by the detaining authority, the bench underscored. “The petitioner was granted bail in FIR No. 60/2023 just few days before the detention order came to be passed. Had it been brought to the notice of the detaining authority of the bail granted in favour of the petitioner, the detaining authority may or may not have passed the detention order”, the bench remarked. The court referenced the Supreme Court's ruling in "Anant Sakharam Raut v. State of Maharashtra and another," where non-application of mind regarding a detainee's bail status was grounds for quashing the detention order.Furthermore, the court observed that the petitioner's representation had not been decided, a fundamental right under Article 22(5) of the Constitution. This non-consideration of the representation was a critical flaw, further vitiating the detention proceedings, the bench maintained. Concluding that the detention order was unsustainable, the court quashed the same and directed the immediate release of Sheikh, provided he was not required in any other case.Case Title: Owais Naseer Sheikh Vs UT of J&K Citation: 2024 LiveLaw (JKL) 126Click Here To Read/Download Judgment

Not Mentioning Grant Of Bail In Detention Order Is Serious Lapse, Gives Rise To Inference Of Non-Application Of Mind: J&K High Court

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