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2020 DIGILAW 638 (JK)

Lateef Ahmad Dar v. State of J&K

2020-11-27

SANJEEV KUMAR

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Judgment Sanjeev Kumar, J.—Lateef Ahmad Dar (the detenue), has filed this petition through his brother-in-law, namely, Shakeel Ahmad Dar, seeking a Writ of Habeas Corpus for quashing the detention order bearing No. 41/DMP/PSA/19 dated 07-08-2019, passed by District Magistrate, Pulwama (the detaining authority) with a view to prevent him from acting in any manner prejudicial to the security of the State. The order is purportedly passed by the detaining authority in exercise of powers conferred under Section 8(a) of the J&K Public Safety Act, 1978 (the Act of 1978). 2. Before adverting to the grounds of challenge urged by the learned counsel for the petitioner to assail the detention order, it is necessary to refer to the grounds of detention on the basis of which the detention of the detenue has been ordered by the detaining authority. 3. As per the dossier supplied by Senior Superintendent of Police, Pulwama, vide his letter dated 07.08.2019, the detenue is a resident of Village Belowdergund Rajpora of District Pulwama. The detenue is a dropout from the Government Higher Secondary School, Rajpora, where he was pursuing his 9th class. It is further narrated by the police that the detenue developed contacts with hardcore separatists, anti-national elements and trouble mongers and started harassing and threatening the general public, the traders and other peace loving and law abiding citizens. There is an allegation that the detenue along with his companions and on the directions of separatists and anti-national elements was forcing the transporters to stop vehicular movement and shopkeepers to shutter down their shops. There is also an allegation that the detenue was organizing unlawful rallies at various places, delivering hate speeches and provoking the general public against the policies and programmes of the government. On the basis of these allegations, the detenue was even booked in FIR No.74/2016 and FIR No.34/2019 registered in P/S Rajpora. As is noted by the detaining authority in the last paragraph of the grounds of detention, the activities as projected by the police in the dossier and taken note of in the grounds of detention were found highly prejudicial to the security of the State and with a view to prevent him from continuing with such activities, the detaining authority recorded its satisfaction that placing the detenue under preventive detention was imperative and absolutely necessary. This is how the detaining authority passed the order of detention. 4. This is how the detaining authority passed the order of detention. 4. The impugned order has been assailed by the petitioner on several grounds. The grounds of challenge which were emphasized by the learned counsel for the petitioner during the course of arguments may be summarized here under: (I) That there is no nexus of the activities alleged in the grounds of detention against the detenue with the detention order; (II) That the grounds of detention are too vague and general that no prudent person can make an effective representation there against; (III) That the detention order suffers from total non-application of mind, in that, at the time of detention, the detenue was already in custody in case FIR No.34/2019 and had not applied for bail. The detaining authority has not disclosed the compelling reasons to pass the detention order when the detenue was already available with the State in connection with FIR No.34/2019; (IV) That the detenue was not furnished the relevant material like copy of the dossier and the so called connected material as was considered by the detaining authority at the time of recording its subjective satisfaction that the detention of the detenue under preventive law was imperative to prevent him from acting in any manner prejudicial to the security of the State. 5. The respondents have filed their reply affidavit and have denied the allegations of the petitioner as narrated in the petition. 6. Despite directions issued by this Court from time to time, the respondents have not produced the detention record to substantiate the averments made by the detaining authority in the reply affidavit. 7. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned detention order is liable to the quashed on the solitary ground of total non-application of mind on the part of detaining authority. Admittedly and it is not disputed in the reply affidavit by the respondents, the detenue was an accused in FIR No.74/2016 and FIR No.34/2019, both registered in Police Station, Rajpora. The detenue in his petition has categorically stated that he was in custody in case FIR No.34/2019 at the time of his detention and had not even applied for bail and, therefore, there were no compelling reasons or circumstances to slap detention order upon him. The detenue in his petition has categorically stated that he was in custody in case FIR No.34/2019 at the time of his detention and had not even applied for bail and, therefore, there were no compelling reasons or circumstances to slap detention order upon him. This averment made by the petitioner has not been controverted by the respondents in their reply affidavit. If that be the position, it is a foregone conclusion that the detaining authority at the time of recording its satisfaction was not even aware that the detenue was already in the custody of respondents in connection with FIR No.34/2019. No effort seems to have been made by the detaining authority to ascertain whether the detenue had applied for bail and there was likelihood of the detenue being released on bail by the competent court of law. The detaining authority has also not indicated any compelling reasons to justify the preventive detention of the detenue despite the fact that he was already in custody for commission of substantive offence for which FIR No.34/2019 stood registered in Police Station, Rajbagh. 8. There is also no rebuttal to the allegation of the detenue that he was not served with all the relevant material relied upon by the detaining authority for recording its subjective satisfaction. It is also not forthcoming from the reply affidavit as to what were the other connected documents apart from the dossier supplied by the police which were taken into consideration by the detaining authority for recording its satisfaction with regard to the necessity of putting the detenue under preventive detention by invoking the provisions of the Act of 1978. 9. Learned counsel for the respondents has placed strong reliance on the judgment of the Supreme Court in the case of Hardhan Saha vs. State of W.B, (1975) 3 SCC 198 , which, in the given facts and circumstances of this case, is not attracted at all. It is true that there is a clear distinction between a preventive and punitive detention. It is also not in dispute that recording of subjective satisfaction is not subject to judicial review except when it is based on no material or is based on the material not relevant to the detention. It is true that there is a clear distinction between a preventive and punitive detention. It is also not in dispute that recording of subjective satisfaction is not subject to judicial review except when it is based on no material or is based on the material not relevant to the detention. In the instant case, this Court finds the order of detention bad for the reason that there was total non-application of mind on the part of detaining authority and the relevant material which ought to have been considered by the detaining authority was either not brought to the notice of the detaining authority or was not gone into by it for the reasons best known to the detaining authority. The fact that the detenue was in detention and had not applied for bail was a relevant factor which could have been considered by the detaining authority at the time of recording satisfaction that the detention of the detenue was still imperative for the reasons which the detaining authority was supposed to spell out. (See Vijay Kumar Vs. Union of India [ (1988) 2 SCC 57 ], Amrit Lal Vs. Union of India [ AIR 2000 SC 3675 ], Rekha Devi Vs. State of Tamil Nadu [ (2011) 5 SCC 244 ]. 10. For the foregoing reason, this petition is allowed. The impugned order of detention is quashed. Direction is issued to the respondents to release the detenue from the preventive custody forthwith, provided he is not required in connection with any other case.