Subsequent Detention Order Not Mentioning Detenu's Previous Detention On Same Grounds And Materials Not Sustainable: JKL High Court

The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had challenged a detention order whereby he had been placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security, sovereignty and integrity of the State.

The petitioner premised his plea inter alia on the ground that the Statutory procedural safeguards had not been complied with in the instant case as whole of the material that formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue and that there has been total non-application of mind on the part of the detaining authority while passing the impugned detention order.

Contesting the plea the respondents justified the passing of the order by contending that the detenue was a habitual criminal, inasmuch as there were various FIRs pending against him and on this basis, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention as there was every likelihood of the detenue indulging in similar activities.

Adjudicating upon the matter Justice Dhar observed that the execution report, which forms part of the detention record suggests that the copy of the police dossier has not at all been supplied to the detenue.

The bench also noted that the grounds of detention had made reference to three FIRs, i.e., FIR Nos.183/2016, 191/2016 and 313/2017 and it was incumbent upon the respondents to furnish not only the copy of these FIRs but also the statements of witnesses recorded during investigation of these FIRs and other material on the basis of which petitioner’s involvement in the said FIRs was shown.

Deliberating on the contention of the petitioner that the impugned order of detention had been passed on the basis of stale incidents having no proximate link with the activities alleged to be prejudicial to the security, sovereignty and integrity of the State, the bench noted that grounds of detention revealed that the incidents referred therein pertain to the year 2016, 2017 and 2018, that is more than six years, five years and four years respectively prior to the passing of impugned order of detention.

"In fact, the incidents and FIRs which formed basis of the grounds of detention have been the basis of earlier detention of petitioner which was made in terms of order No.19/DMK/PSA/2018 dated 04.10.218, which has been quashed by this Court while disposing of HCP No.363/2018", the bench recorded.

Pointing out towards the illegality in the detention order the bench explained that using the same grounds and material for passing subsequent detention order without actually mentioning that the petitioner had been previously detained on the basis of this very material clearly suggests non application of mind on the part of detaining authority and hence renders the same unsustainable.

While allowing the petition, the court directed immediate release of the detenu provided he is not required in any other case.

Case Title: Khalid Nazir Wagay Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 28

Coram: Justice Sanjay Dhar

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