Javaid Iqbal Itoo v. Union Territory of Jammu And Kashmir
2022-12-06
SANJAY DHAR
body2022
DigiLaw.ai
JUDGMENT Sanjay Dhar, J. - By the instant petition, legality and veracity of the detention order No.04/DMA/PSA/DET dated 07.04.2022, issued by District Magistrate, Anantnag (for brevity 'Detaining Authority') is challenged. In terms of the aforesaid order, Javid Iqbal Itoo son of Late Gh. Mohi-din Itoo resident of Sundoo Achabal District Anantnag (for short 'detenu') has been placed under preventive detention and lodged in Central Jail, Kotbhalwal. 2. The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Statutory safeguards have not been complied with in the instant case. It has been urged that the material which formed basis of the grounds of detention and the consequent order of detention has not been provided to the detenue. It has also been contended that there is non-application of mind on the part of the detaining authority while passing the impugned detention order. 3. The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the impugned detention order has been passed validly and after following all norms and procedural safeguards. It has also been contended that the detention order and grounds of detention were handed over to the detenue and the same were read over and explained to him. That the whole material relied upon by the detaining authority has been furnished to the detenue. It is averred that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. The respondents have produced the detention records in order to buttress the contentions raised in the counter affidavit. 4. I have heard learned counsel for parties and perused the detention record. 5.
It is averred that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. The respondents have produced the detention records in order to buttress the contentions raised in the counter affidavit. 4. I have heard learned counsel for parties and perused the detention record. 5. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the following grounds: (I) That there is delay in passing the detention order, which period has neither been addressed nor explained by the detaining authority; (II) That there has been non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.310/2021 for offences under Sections 16, 18, 20, 24, 38, 39 & 40 of UAPA Act registered with P/S Anantnag but this fact has not been mentioned in the grounds of detention. 6. So far as the first ground projected by learned counsel for the petitioner is concerned, a perusal of the detention record reveals that the Senior Superintendent of Police, Anantnag, produced the relevant record before the District Magistrate, Anantnag, vide his letter No.CS/C-21/2022/234-38 dated 06.01.2022, but the impugned detention order has been passed on 07.04.2022, meaning thereby that there is a delay of more than three months in passing the said order. There is no explanation given by the detaining authority regarding delayed passing of the impugned detention order. 7. The detention of a person under the special legislation, such as Public Safety Act, necessarily presumes the immediacy and urgency of curtailing the liberty of a particular person to preclude him from acting in any manner prejudicial to the security of the State or public order, as the case may be. The fact that the respondents did not feel it necessary to detain the petitioner even after the lapse of more than three months of submission of the dossier, shows that the situation was not of such an emergent nature as would have warranted taking resort to preventive detention of the petitioner. On this ground alone, the impugned order of detention gets vitiated. 8.
On this ground alone, the impugned order of detention gets vitiated. 8. Next it has been contended that the impugned detention order suffers from non-application of mind on the part of the detaining authority, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had been admitted to interim bail in FIR No.5310/2021 in terms of order dated 03.12.2021 passed by learned Special Judge Designated under NIA Act, Anantnag, which, after its revocation, was restored by this Court in an appeal in terms of order dated 31.12.2021. Copies of the aforesaid order passed by the Special Judge and the Division Bench of this Court in this regard have been placed on record by the petitioner. All these facts have not been mentioned in the grounds of detention by the detaining authority. The non-mentioning of these important facts in the grounds of detention exhibits non-application of mind on the part of detaining authority. This shows that the detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court rendered in the case of Anant Sakharam Raut vs. State of Maharashtra & Ors. AIR 1987 SC 137 . 9. Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 10. The record, as produced, be returned to the learned counsel for the respondents.