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2007 DIGILAW 17 (JK)

Javid Ahmed Dar v. State Of J. &K.

2007-02-23

HAKIM IMTIYAZ HUSSAIN

body2007
1. Petitioner Mohammad Subhan Dar has through the medium of this petition challenged the order of detention No. Det/PSA/06/319 of 2006 dated 31.7.2006 passed by District Magistrate, Baramulla by means of which detenue namely Javid Ahmed Dar S/O Mohd. Subhan Dar R/o Papchan Bandipora Tehsil Bandipora has been detained under the provisions of Jammu & Kashmir Public Safety Act, 1978 on the grounds detailed in the grounds of detention framed by the Magistrate. 2. The petitioner alleges that there was failure on the part of the detaining authority to follow the safeguards as provided by the Act. It is also alleged that there is complete non-application of mind on the part of detaining authority while directing the preventive detention of the detenue. 3. Respondents have not filed any reply. However, the record has been made available by the State. 4. Heard, I have considered the pleas raised. I have also perused the record. 5. The detention of the detenue has been ordered on the basis of grounds of detention framed by the District Magistrate. Perusal of the grounds would show that it is a verbatim copy of the dossier of the Superintendent of Police submitted by him to the concerned Magistrate. 6. In Naba Lone v. District Magistrate 1988 SLJ 300 this Court while dealing with a case where a similar situation arose observed: - The grounds of detention supplied to the detenue is a copy of the police dossier, which was placed before the District Magistrate for his subjective satisfaction in order to detain the detenue. This shows total non-application of mind on the part of the detaining authority. He has dittoed the Police direction without applying his mind to the facts of the case.� 7. In Noor-ud-Din shah v. State of J&K & Ors. 1989 SLJ 1, this Court quashed the order of detention which was only a reproduction of the dossier supplied to the Authority on the ground that it amounted to non-application of mind. The Court observed: I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenue in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case. He has acted as an agent of the police. It was his legal duty to find out if the allegations leveled by the police against the detenue in the dossier were really going to effect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenue, sb as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive detention as or detained in the Act, passing of an order without application of mind goes to the root of its validity, and in that case, the question of going into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act.� 8. A similar situation arose in Jai Singh and Ors. V. State of Jammu and Kashmir AIR 1985 SC 764 before the Supreme Court. The court quashed the detention as it found that there cannot be a greater proof of non-application of mind and that the liberty of a subject being a serious matter, it is not to be tripled with in this casual, in different and routine manner. V. State of Jammu and Kashmir AIR 1985 SC 764 before the Supreme Court. The court quashed the detention as it found that there cannot be a greater proof of non-application of mind and that the liberty of a subject being a serious matter, it is not to be tripled with in this casual, in different and routine manner. The Court observed: - First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jail Singh, father™s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited The subject is an important member of....� Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words the subject is� into you Jai Singh, S/o Ram Singh, resident of village Bharakh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi�. Thereafter word for word the police dossier is repeated and the word he� wherever it occurs referring to Jail Singh in the dossier is changed into ˜you™ in the grounds of detention. We are afraid it is difficult of find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner.� 9. Applying this settled legal position to the facts of the present case I find the order impugned cannot stand as it is based on the grounds of detention which is only a verbatim copy of the police dossier. In the facts and circumstances I find no due application of mind on the part of the detaining authority while passing the order impugned. In view of this ground I need not to go to other grounds raised in the petition. 10. The petition is therefore, allowed. Detention order No. Det/PSA/06/319 dated 31.7.2006 impugned in the present petition is hereby quashed. Detenue Javid Ahmed Dar S/o Mohd. In view of this ground I need not to go to other grounds raised in the petition. 10. The petition is therefore, allowed. Detention order No. Det/PSA/06/319 dated 31.7.2006 impugned in the present petition is hereby quashed. Detenue Javid Ahmed Dar S/o Mohd. Subhan Dar R/o Papchan Bandipora Tehsil Bandipora District Baramulla be released from custody in this case forthwith provided he is not required in any other case. 11. Record produced by Ld. Dy. AG is returned to him in the open court.