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Reliance Of Both 'Security Of The State' And 'Maintenance Of Public Order' Which Are Distinct Concepts Reflect Non-Application Of Mind By The Detaining Authority : J&K HC

Monisha Purwar
7 Sep 2020 2:00 PM GMT
Reliance Of Both  Security Of The State And Maintenance Of Public Order Which Are Distinct Concepts Reflect Non-Application Of Mind By The Detaining Authority : J&K HC
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The Srinagar Bench of the Jammu & Kashmir High Court quashed a detention order detaining Fayaz Ahmed Mir of Pulwama under Section 8(a) of the Jammu & Kashmir Public Safety Act, 1978. The order was assailed by the father of the detenu Ab. Rashid Mir who pleaded that the grounds of detention mentioned in the detention order had no nexus to the detenu and that there had been no application of mind by the Detaining Authority in detaining him.

He referred the Court to the twin activities mentioned in the detention order namely "Maintenance of Public Order" and "the Security of the State" as proof of non-application of mind by the Authorities. He also claimed that the Detaining Authority had not prepared the grounds of detention itself which is a pre-requisite for passing any order of detention but had only relied on the police dossier. He also informed the Court that the Detaining Authority had not furnished copies of the relevant material (that had been relied on to pass the order) to the detenu and that the same had prevented the detenu from making an effective representation.

The order of detention of the detenu dated 08 August 2019 stated that

"I am satisfied that with a view to prevent Shri Fayaz Ahmad Mir @ Chota Geelani S/o Ab. Rashid Mir R/o Pahoo Tehsil Kakapora district Pulwama form acting in a a menner, prejudicial to the Security of the State, it is necessary to detain the said person under the provisions of J&K Public Safety Act"

In its last paragraph, the order also stated that

"Therefore, in order to prevent you from indulging in the activities, which hare detrimental to the maintenance of public order, it is necessary to detain you by invoking the provisions of J&K Public safety Act, 1978"

The Bench comprising of Justice Sindhu Sharma on perusal of the above order concluded that

reliance of both the expressions 'Security of the State' and 'Maintenance of Public Order' which are distinct concepts reflect the total non-application of mind by the Detaining Authority.

The Court relied on its ruling in G. M. Shah v. State of Jammu and Kashmir of 1980 which had considered a similar issue reiterating the following excerpt from the judgment

"the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors. and Satya Brata Ghose v. Arif Ali & Ors.

Furthermore, the Court stated that the facts and circumstances of the case reveal that the allegation that relevant material had not been furnished to the detenu is also true. It stated that the detenu was given a mere copy of the order of detention and grounds of detention without being provided the dossier, FIR and other relevant material. The Court stated that such a lapse by the Detaining Authority has prevented the detenu from making an effective representation as mandated under Article 22(5) of the Constitution of India as well as under Section 13 of the J&K Public Safety Act and the impugned order being vitiated on this account cannot be sustained.

It therefore quashed the detention order and directed the respondents to release the detenu from its custody, provided that he is not required in any other case.

Click Here To Download Judgment

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