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2010 DIGILAW 38 (JK)

Mohd. Ashraf Khan v. State

2010-02-03

MOHAMMAD YAQOOB MIR

body2010
1. Preventive orders so as to deter a person from acting in any way which shall be threatening the security of the State, have to be passed, same is indispensable. However, the power in issuing preventive orders has to be exercised in a manner which would show that all the safeguards as against the orders of detention are taken into consideration and respected. Liberty is precious, curtailment thereof can be by way of exception but it must have some reasonable basis. In absence of any solid basis to tamper with the right of liberty is not permissible. 2. Any person who in any way threatens security of the State has to be dealt with iron hand but constitutional guarantees under such guise cannot be permitted to be defeated. 3. Instant case in effect is one wherein order of detention absolutely suffers from non-application of mind and on plain reading shows that it has been passed in violation of the constitutional rights guaranteed to the petitioner. 4. The non application of mind on the part of detaining authority is writ large, as in the order impugned Detaining Authority has recorded that on the basis of grounds of detention placed before him by the Superintendent of Police he has derived satisfaction regarding detention of the detenue. 5. It is to be made clear that whatever material is collected by the Police or any other agency has to be placed before the Detaining Authority and it is then the Detaining Authority who, on scrutiny, has to ascertain as to whether there is any solid base for the allegations as shall be contained in the material so collected. The authority has to derive subjective satisfaction and then to formulate grounds of detention. 6. In the instant case it appears that deriving of subjective satisfaction has become a casualty. Simply whatever has been mentioned in the dossier has been mentioned in the grounds of detention, that is why in the order of detention it is recorded that satisfaction is derived from the grounds of detention placed on record by SSP when the allegations contained therein are not substantiated by any record. 7. Perusal of the detention record has failed the learned counsel for the respondents to support the order of detention though he made an effort to justify the order of detention. 8. 7. Perusal of the detention record has failed the learned counsel for the respondents to support the order of detention though he made an effort to justify the order of detention. 8. The Detaining Authority has not noticed the important fact i.e. the petitioner in connection with case registered as FIR No. 17/2009 had been released on bail by the Court of Chief Judicial Magistrate, Kulgam on 8.4.2009 as the same is not reflected in the so-called grounds of detention. Either this fact has not been brought to the notice of the Detaining Authority or the Detaining Authority has not applied its mind properly. This in itself shows as to how the Detaining Authority has applied its mind to the facts of the case. 9. Detenue had been admitted to bail on 8.4.2009, thereafter order of detention has been passed on 15.4.2009. Before the order of detention could be executed instant petition was filed. 10. Noticing the contentions as raised in the petition, which are now fully supported by the detention record, the operation of the detention order was kept in abeyance, so detenue was not taken into custody. Though the order of detention was passed on 15.4.2009 but till 21st of May, 2009, when order impugned was ordered to be kept in abeyance, no effort seem to have been put in for execution of the order of detention. 11. Quashing of detention order at pre-execution stage has to be exceptional and the present case is that exception. Allowing execution of the impugned order shall be totally in violation of the guaranteed constitutional rights of the petitioner and shall work as violence to justice. 12. The Honble Apex Court as well as this Court in most of the cases have set at rest as to how the safeguards guaranteed against the preventive laws have to be respected but still non-adherence is repeated. 13. The order of detention on the face of it is not only vague and unsupported by any material but also appears to be an arbitrary exercise of power, hence quashed. 14. Detention record as produced be returned to the learned counsel for the respondents. Disposed of as above.