'If Detenue Was In Custody, It Wouldn't Have Been Possible For Him To Indulge In Stone Pelting' J&K HC Quashes A Detention Order Passed 'In A Mechanical Manner' [Read Order]

While hearing a petition wherein the Detaining Authority had ordered to place a Detenue under preventive detention, the Jammu and Kashmir High Court on Tuesday (22nd September) noted that it was clear from the dossier as well as the grounds of detention that at the time of passing of the impugned order, the detenue was in custody.In spite of this, the Court observed, it was recorded in the grounds of detention that "the detenue is presently playing an active role in implementing programmes of secessionist elements on the ground by resorting to illegal activities such as stone pelting etc."In this Context, the Bench of Justice Sanjay Dhar observed,"If the detenue was in custody, it would not have been possible for him to indulge in activities like stone pelting etc. This goes on to strengthen the contention of the learned counsel for the petitioner that the grounds of detention have been formed in a mechanical manner in this case"Matter before the CourtChallenge in the petition was thrown to the order No.DMS/PSA/144 dated 30.11.2019, issued by District Magistrate, Srinagar (for brevity "Detaining Authority") whereby Shri Nasir Ahmad Mir son of Abdul Rashid Mir resident of Malik Mohalla Habbak Chanpora District Srinagar (for short "detenu") had been placed under preventive detention directing his lodgement in Central Jail, Srinagar.Contentions RaisedThe counsel for the petitioner, while seeking the quashment of the impugned order, projected various grounds but the main grounds that prevailed during the discussion were:(a) That the grounds of detention are a verbatim copy of the dossier, which shows that the detaining authority has not himself prepared the grounds of detention which is prerequisite for him before passing any detention order, thus non-preparation of grounds of detention by the detaining authority renders the impugned order bad in law; (b) That the detenue has been disabled from making an effective representation against his detention as the translated copies of grounds of detention have not been supplied to him.In the rebuttal, the Counsel for the respondents made an attempt to justify the passing of the order impugned by contending that the detenue was a habitual stone pelter, inasmuch as there were two FIRs pending against him and on this basis, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention so there was every likelihood of the detenue indulging in similar activities.It was further contended that all the documents relied upon by the Detaining Authority were, provided to the detenue and in token of having received the same, the detenue has signed the receipt.It was also urged that the contents of the documents were read over and explained to the detenue in the language understood by him.Court's Analysis and DecisionThe Court was of the view that,"Preventive detention, in effect, is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, being an exception to Article 21, has to be reasonable and not based on the ipse dixit of the detaining authority."While citing the ruling of the Apex Court in the Cases of Rekha v. State of Tamil Nadu and anr (2011) 5 SCC 244 and Kamleshwar Ishwar Prasad Patel Vs Union of India and Others [(1995) 2 SCC 51], the Court concluded that,"whenever preventive detention is called in question in a court of law, the first and foremost task before the Court is to see whether the procedural safeguards, guaranteed under Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to."Further, the Court opined that while formulating the grounds of detention, the Detaining Authority has to apply its own mind. It cannot simply reiterate whatever is written in the dossier.It may be noted that recently the Jammu & Kashmir High Court (Jammu Wing) had quashed a detention order detaining one Surinder Singh under Section 8 of the Jammu & Kashmir Public Safety Act, 1978.The Single Bench of Justice Puneet Gupta had observed,"No specific wording is required to be maintained while passing the order of detention while assessing the case in a subjective manner but the order has to reflect that proper application of mind has been applied keeping in view all the facts and circumstances of the case. Mere reproduction of the dossier in the detention order cannot justify the detention order in such circumstances." (emphasis supplied)Adverting to the facts of the instant case, the Court noted, it is clear from the record that the dossier and the grounds of detention contain almost similar wording which shows that there has been no application of mind on the part of the Detaining Authority.Latly, the Court said that a detenue has not only to be furnished the translated versions of the grounds of detention, particularly when a detenue is semi-literate, as is the case at hand, but even the...

'If Detenue Was In Custody, It Wouldn't Have Been Possible For Him To Indulge In Stone Pelting' J&K HC Quashes A Detention Order Passed 'In A Mechanical Manner' [Read Order]

Sparsh Upadhyay

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