The Jammu and Kashmir High Court recently quashed an order for detention while observing that detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified.
Justice Vinod Chatterji Koul observed:
"Perusal thereof reveals that same are vague and ambiguous, and do not refer to any date, month or year of the activities, which have been attributed to detenu. Detention in preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified. The matters to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of surrounding circumstances and other relevant material, is likely to act in a prejudicial manner as contemplated by the provisions of the law and, if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not the matters susceptible of objective determination, and they could not have been intended to be judged by objective standards."
The petitioner had filed the present petition wherein he had been placed under preventive detention with a view to prevent him from indulging in the activities which are prejudicial to the security of the State, on the grounds made mention of therein.
Petitioner submitted that the allegations made in the grounds of detention are vague and indefinite and no prudent man can make an effective representation against these allegations inasmuch as case mentioned in grounds of detention has no nexus with detenu and detaining authority has not given any reasonable justification to pass impugned order.
He vehemently argued that grounds of detention are replica of dossier and unequivocally reflects and shows non-application of mind on the part of detaining authority and as a consequence of which impugned order of detention is liable to be quashed.
The respondent filed an affidavit stating that the activities indulged in by detenu are highly prejudicial to the security of the Union Territory and, therefore, he is a threat to the security of Union Territory of J&K.
The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention were refuted by the respondent. It was insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant.
Court went through the grounds of detention and recorded that the same are vague and ambiguous. Further after going through the records and hearing both parties observed that these are essentially the matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the Legislature to the subjective satisfaction of detaining authority which, by reason of its special position, experience and expertise, would be best suited to decide them.
"The Constitutional imperatives of Article 22(5) and the dual obligation imposed on the authority making the order of preventive detention, are twofold: (1) The detaining authority must, as soon as may be, i.e. as soon as practicable, after the detention order is passed, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention, i.e. to be furnished with sufficient particulars to enable him to make a representation which, on being considered, may obtain relief to him," the Court said.
Court also said that inclusion of an irrelevant or non-existent ground, among other relevant grounds, is an infringement of the first of the rights and the inclusion of an obscure or vague ground, among other clear and definite grounds, is an infringement of the second of the rights.
The reason why the court has said so is because the inclusion of even a simple irrelevant or obscure ground, among several relevant and clear grounds, is an invasion of the detenu's constitutional right.
"Even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is non-existent or misconceived or irrelevant, the order of detention would be invalid. Where the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague or irrelevant the entire order must fall. The satisfaction of detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention."
Further the court said that irrelevant grounds, being taken into consideration for making the order of detention, are sufficient to vitiate it. Infact, the court was of the view that even one irrelevant ground is sufficient to vitiate the order as it is not possible to assess, in what manner and to what extent, that irrelevant ground operated on the mind of the appropriate authority, and contributed to his satisfaction that it was necessary to detain the detenu in order to prevent him from acting in any manner prejudicial to the maintenance of the public order or security of the State.
Coming back to the case, the court was of the view that perusal of the documents shows that the same are replica of dossier with interplay of some words here and there. The same portrays non-application of mind and in the process of deriving of subjective satisfaction, has become causality.
"This, thus, portrays non-application of mind and in the process of deriving of subjective satisfaction, has become causality. While formulating grounds of detention, detaining authority has to apply its own mind. It cannot simply reiterate whatever is written in the dossier." Court said
In view of the above circumstances, the petition was disposed of.
Case Title: Arif Manzoor Sheikh Versus Government of J&K and ors.
Citation: 2022 LiveLaw (JK) 31