[Preventive Detention] Satisfaction Of Detaining Authority Must Be Based On Collective Scrutiny Of Police Dossier & Connected Docs: J&K&L High Court

The observations were made by Justice Wasim Sadiq Nargal while hearing a plea in terms of which the detenu through his father had challenged the legality and validity of the detention order issued by respondent under section 8 of the J&K Public Safety Act, 1978.

The main plank of the argument of the counsel for the petitioner was that the order impugned specifically reflected that the District Magistrate had simply perused the contents and recommendations mentioned in the dossier and had not seen the other connected documents while passing the order of detention, which clearly proved beyond any shadow of doubt that there was total non-application of mind and all the material had not been gone in detail while passing the order of detention, which vitiated the same and was hence liable to set aside.

The petitioner further contended that since all the material had not been taken into consideration by the Detaining Authority while passing the order of detention, the detenue had been denied of effective representation, which is in violation of section 13(1) of the Public Safety Act (PSA), 1978.

Adjudicating upon the matter Justice Nargal observed that it has been specifically mentioned that the detenue has pelted stones on the police party while passing through Sharshali Haj Mohalla, Khrew and thereby, they were prevented from discharging their lawful duties regarding which FIR No. 17/2020 was registered under sections 147, 148, 336 and 427 IPC in Police Station, Khrew in which he has been granted bail.

The bench however recorded that even though allegations of activities prejudicial to the maintenance of peace, public order and tranquility in the area have been made but these are without specifying the details of the persons and the exact date on which he met with the so called chronic stone pelters.

"In absence of the material supporting the aforesaid allegations or specifying details of such incident, it cannot be held that his activities are prejudicial to the maintenance of peace, public order and tranquility nor there is any whisper in the record substantiating these vague allegations", the bench maintained.

Explaining the effect of not specifying the details in the impugned order the bench observed that since no particular incident, event or details have been reflected in the grounds of detention which is the basis for passing the impugned order, accordingly, the detenue has been denied of effective representation as the detenue is not aware of the material which has been applied against him while passing the order impugned.

Buttressing the said position of law the bench placed firm reliance on the Supreme Court judgement in Khudiram Das v. State of West Bengal and others, (1975) wherein SC observed,

"All basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction".

Elaborating its mind on the matter at hand the bench maintained that except general statements, there is no material on record which shows that the detenue is acting is such a manner, which is dangerous to the public order. The solitary incident in the present case in which he has already been granted bail is not enough to curtail the personal liberty of the detenue by passing the order impugned, the bench underscored.

For the foregoing reasons the bench allowed the petition and the impugned order of detention was set aside. It was further directed that the detenue be released from the preventive custody forthwith provided he is not required in connection with any other case(s).

Case Title : Sajad Ahmad Bhat Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 208

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