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2020 DIGILAW 414 (JK)

Farman Ali v. Union Territory of Jammu and Kashmir

2020-08-21

PUNEET GUPTA

body2020
JUDGMENT The petitioner has challenged detention order No. PSA/92 dated 16.07.2017, passed by the respondent No.2, on the ground that the order is a complete verbatim of the dossier submitted by the respondent No.3 and the respondent No. 2 has merely acted as a Post Office; that the grounds of detention have not been explained to the petitioner nor the right of representation was provided to the petitioner against the detention order. It is submitted that the status of the FIRs has not been mentioned in the detention order and the grounds. Finally, it is argued that the detention order has been approved by the government after inordinate delay of two years. 2. The objections filed on behalf of the respondents are treated as counter to the petition. It is mentioned in the counter that the petitioner was informed of the grounds of his detention and the same were read over and explained in the language understood by the detenue; that the order has been passed with full application of mind by the concerned authority and after deriving subjective satisfaction. The procedure adopted in the detention proceedings is also mentioned. Indeed the prayer is for dismissal of the present petition. 3. The record of the detention proceedings has been produced by learned AAG. The counsels have argued on the lines of respective pleadings. 4. At the outset, it may be noticed that the record produced by the respondents is not complete reflection of the facts pleaded in counter filed by the respondents. 5. The basic facts which emerge from the pleadings and the other material on record are: that the detention order was passed on 16.7.2017, that the PSA warrant was executed on 03.9.2019 and that the government approved the detention order no. Home/PB-VI/2199 of 2019 dated 09.10.2019 after the approval from the Advisory Board and thereafter detention order extended from time to time. 6. The court is not made aware of the reason for belated approval of detention order by the government. In case the detention order was not to be executed for more than two years for one reason or another and the approval from the government was to take place after more than two years after the detention order was passed, the efficacy of such detention order cannot sustain after the lapse of two years. In case the detention order was not to be executed for more than two years for one reason or another and the approval from the government was to take place after more than two years after the detention order was passed, the efficacy of such detention order cannot sustain after the lapse of two years. The statutory requirements under PSA Act are not adhered to by the authorities in the case. The court has no hesitation in holding the order of detention is bad on this score only. 7. It needs no re-iteration that the purpose of the preventive detention is to prevent such acts of the person which are likely to prove prejudicial to the maintenance of public order. Further, the satisfaction of detaining authority is subjective one but subject to the scrutiny of the court. 8. It is also pertinent to mention that the order of detention is silent on the status of the petitioner in the FIRs mentioned in the detention order. The dossier sent by the respondent no.3 to the respondent no.2 does speak of the custody of the petitioner in FIR no. 76/2017 when the dossier is prepared. The dossier mentioning the details of the cases against the detenue cannot rescue the detention order from being held bad if the detention order is silent on the above aspect. The non-application of mind by the detaining authority in the present case is writ large. The facts that are borne out from the record are sufficient to set aside the order of detention and there is no need to consume more time by referring to the judgments cited by the petitioner in support of his case. 9. In the light of the discussion made above, the order of detention, passed against the petitioner-Farman Ali, is quashed. The petitioner is to be set at liberty if not required in any other case. The record of the case be returned to the learned AAG. The petition is disposed of.