Not Detenue's Burden To Correct Typographical Error In FIR: J&K High Court Quashes Detention Order Due to Lapses By Authorities

Petitioner Abdul Qayoom Ganaie, was detained under preventive custody pursuant to an order issued under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS) Act, 1988. The detention, executed on July 13, 2023, was based on allegations of involvement in organized drug trafficking.

The petitioner's wife, Zareena Begum, acting through counsel Mr. M. Usman Gani, challenged the detention order, citing several discrepancies and violations of procedural norms. The contention also revolved around the erroneous reference to FIR No. 35/2023 instead of FIR No. 33/2023, indicating a lack of due diligence on the part of authorities.

Adjudicating the matter Justice Bharti spotlighted the unexplained typographical error and found the wrong FIR reference to be a serious lapse and not a mere error. It highlighted the absurdity of expecting Ganaie to obtain a copy of the correct FIR (No. 33/2023) and inform the authorities about their mistake.

“This omission with respect to wrong mentioning of the FIR cannot be taken to be a case of typographical error..the petitioner was left at his own to understand and figure out the puzzle set in the dossier and the grounds of detention by the SSP Baramulla and the Divisional Commissioner, Kashmir respectively with respect to mention of FIR 35/2023 of the Police Station Boniyar as if expecting the petitioner to go and fetch a certified copy of the FIR No. 33/2023 and then make wise the SSP, Baramulla and the respondent No. 2 - Divisional Commissioner, Kashmir of the typographical mistake attending their dossier and the grounds of detention respectively”, the bench remarked.

Pointing out the delay in issuing the detention order, even after Ganaie secured bail, the bench said,

“..the Divisional Commissioner, Kashmir has not spelled out the reasons on the detention file of the case for the delay in responding to the dossier…Therefore, the delay caused in passing the detention order is a weakening factor against the detention of the petitioner rendering his detention illegal”.

Furthermore, Justice Bharti also scrutinized the opinion of the Advisory Board, constituted under the repealed J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, and observed that relying on an opinion from an Advisory Board constituted under a repealed Act has further undermined the legality of the detention.

Considering the cumulative effect of these lapses, Justice Bharti quashed the detention order and directed Ganaie's immediate release.

Case Title: Abdul Qayoom Ganaie Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 74

Mr. M. Usman Gani, Advocate represented the petitioner while the UT of J&K was represented by Mr. Sajad Ashraf, GA

Click Here To Read/Download Judgment