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2022 DIGILAW 359 (JK)

Imtiyaz Ahmad Lone v. U. T. of J&K

2022-07-29

SINDHU SHARMA

body2022
JUDGMENT : 1. The District Magistrate, Anantnag vide his Order No. 52/DMA/PSA/DET/2021, dated 13.01.2022, detained Imtiyaz Ahmad Lone S/o Mohammad Dilawar Lone under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 to prevent him from acting in a manner prejudicial to the maintenance of public order. This order of detention is assailed by the detenue through his father, Mohammad Dilawar Lone. 2. The contention of the detenue is that the Detaining Authority has passed the order of detention without any application of mind. The order of detention amongst others has been challenged by the detenue on the grounds that; (i) the allegations made in the grounds of detention are vague and non-existent and no prudent man can make a representation against the same. (ii) the allegations reflected in the grounds of detention are vague and do not justify the passing of detention order on the basis of such allegations. (iii) the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite for passing any detention order. (iv) the grounds of detention are replica of the police dossier and clearly depicts the non-application of mind on the part of detaining authority. (v) the detenue had not been furnished all the relevant material like copy of the dossier and other connected material relied upon by the Detaining Authority, while passing the order of detention and the same had prevented the detenu from making an effective representation. (vi) the detenue was arrested in FIR No. 65 of 2021 and was released on bail but this has not been noticed by the Detaining Authority, as such, there is non-application of mind. (vii) there is delay in execution of the detention order which has casts a shadow of doubt on the necessities of same and this has rendered the detention invalid. 3. Ms. Insha Rashid, learned G.A has filed a counter affidavit as well as produced the detention record. 4. It is submitted by her that the detenue was detained under the provisions of Jammu and Kashmir Public Safety Act, 1978 validly by virtue of detention order dated 13.01.2022, issued by the District Magistrate, Anantnag. The Detaining Authority has complied with all the statutory requirements and constitutional guarantees as provided to the detenue under law while keeping in view the object of the law of preventive detention. The Detaining Authority has complied with all the statutory requirements and constitutional guarantees as provided to the detenue under law while keeping in view the object of the law of preventive detention. All the material relied upon by the Detaining Authority had been provided to the detenue incompliance to the detention order. It is further submitted by him that the very object of law of preventive detention is not punitive and the detenu has been detained by Detaining Authority after considering all the material, while arriving at its requisite subjective satisfaction. The detenu has also been provided all the material relied upon by the Detaining Authority. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the petitioner has stated that the detenue was arrested in FIR No. 65 of 2021 under Sections 11, 13 and 18 of the ULA(P) Act and this fact has also been noticed in the grounds of detention passed by the Detaining Authority, however, the detenue was released on bail by the Court of Special Judge (designated Court under NIA), Anantnag on 01.01.2022. The Detaining Authority, however, while passing the impugned order of detention has failed to notice this fact in its grounds of detention and this has rendered the detention bad and unsustainable. 7. The Hon'ble Apex Court in 'Anant Sakharam Raut v. State of Maharashtra & Anr.', 1987 AIR SC137 had held as under: "05. We do not think it necessary to go into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made aware at the time the detention order was made that the detenue had moved applications for bail in the three pending cases and that he was enlarged on bail on 13.01.1986, 14.01.1986 & 15.01.1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under-trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention". 8. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention". 8. The detenue was already at bail on 01.01.2022, the Detaining Authority has not shown any awareness to this fact while passing the order of detention on 13.01.2022, therefore, there is non-application of mind by the Detaining Authority, as such, the detention order is not sustainable. 9. Perusal of the record reveals that the impugned order of detention was passed by the Detaining on13.01.2022 but the same was executed only on 02.02.2022. There is delay in execution of the detention order which has not been explained. 10. The Detaining Authority, in the grounds of detention had arrived at a requisite satisfaction that the activities of the detenue were prejudicial to the maintenance of public order and measures to keeping in view the security scenario to prevent the detenue from indulging in similar activities, it was imperative to detain him under the provisions of Jammu and Kashmir Public Safety Act, 1978. However, despite such apprehensions, the Detaining Authority had failed to execute the impugned order of detention which was executed after a delay of almost twenty days (20 days). There is no explanation tendered for the delay of almost twenty days in the execution of the detention order and this casts a shadow of doubt on the necessity of passing of the order of detention as the same has rendered its purpose irrelevant. This inordinate delay in executing the detention order vitiates the same. 11. In view of the law laid down in 'Manju Ramesh Nahar v. Union of India & Ors.' AIR 1990 (0) SC 2622, it was held that: "This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the "satisfaction" of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent". 12. In A. Mohammed Farook v. Jt. Secy. To G.O.I. & Ors., (2000) 2 SCC 360 , the Hon'ble Apex court hasheld that: "the only contention before the Court was that of delay in executing the order of detention. 12. In A. Mohammed Farook v. Jt. Secy. To G.O.I. & Ors., (2000) 2 SCC 360 , the Hon'ble Apex court hasheld that: "the only contention before the Court was that of delay in executing the order of detention. In that case, the detention order was passed on 25.02.1999 but the authorities have chosen to execute the detention order only on 06.04.1999 after an inordinate and unreasonable delay of nearly 40 days. In the absence of proper and acceptable reasons for the delay of 40 days in executing the detention order, this Court concluded that the subjective satisfaction of the Detaining Authority in issuing the detention order dated25.02.1999 gets vitiated and on this ground quashed the same". 13. Similarly, in K.P.M. Basheer v. State of Karnataka & Anr., AIR 1992 SC 1353 , the Hon'ble Apex court has held that: "...Under these circumstances, we are of the view that the order of detention cannot be sustained since the 'live and proximate link' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in security the appellant/detenue and detaining him...". 14. In view of the aforesaid discussion, there is no need to advert to other grounds raised in this petition. This petition is allowed and the detention order No. 52/DMA/PSA/DET/2021, dated 13.01.2022 passed by the District Magistrate, Anantnag, under which detenu-Imtiyaz Ahmad Lone S/o Mohammad Dilawar Lone is under detention is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, provided that he is not required in any other case. 15. Let the detention record be handed over to learned counsel for the respondents by the Registry.