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2023 DIGILAW 126 (JK)

Rameez Ahmad Lone v. UT of J&K

2023-03-31

JAVED IQBAL WANI

body2023
JUDGMENT : Javed Iqbal Wani, J. 1. Through the medium of instant petition quashment of detention order bearing No. 28/DMB/PSA/2021, dated 17.11.2021, (hereinafter for short the 'impugned order') passed against the detenu, namely, Rameez Ahmad Lone, is being sought for by the petitioner as also a writ of Habeas Corpus for his release. 2. It is being stated in the petition that the detenu is a law abiding and peace-loving citizen and has never been involved in any subversive activity prejudicial to the public order or Security of the State. The detenu is stated to have been arrested on 09th of October, 2021 on the allegations of having developed contacts with various terrorist/ secessionist organization to carry out the activities of secessionism. and terrorism and was kept in lockup firstly in Police Station, Bomai and then in SOG Camp Sopore, and thereafter placed under preventive detention in terms of impugned order of detention on 17th of November, 2021 and lodged in Central Jail, Kotbhalwal, Jammu. 3. The impugned order is being challenged on the grounds urged in the petition. 4. On the other hand, respondents, in their reply affidavit filed, resist and controvert the contentions raised and grounds urged by the petitioner in the petition. Heard learned counsel for the parties, perused the record and considered the matter. 5. While dealing with the contention/ground of challenge urged by learned counsel for petitioner concerning the grounds of detention being verbatim of dossier, has taken this Court to have a glimpse of detention record, made available by learned counsel for respondents, a perusal thereof unveils that the grounds of detention are the ditto copy of the dossier. The detaining authority may have got inputs from different agencies, including Superintendent of Police of concerned District/area, but responsibility to formulate the grounds of detention, however, exclusively rests with the detaining authority. It is the detaining authority, who has to go through the reports and other inputs received by it from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that a person is to be placed under the preventive detention. It is, thus, for the detaining authority to formulate the grounds of detention and satisfy itself that the grounds of detention so formulated warrant passing of the order of preventive detention. It is, thus, for the detaining authority to formulate the grounds of detention and satisfy itself that the grounds of detention so formulated warrant passing of the order of preventive detention. This Court as regards the verbatim reproduction of the dossier in grounds of detention, in the case of Naba Lone v. District Magistrate 1988 SLJ 300, while dealing with a case where a similar situation arose, has observed : "The grounds of detention supplied to the detenue is a copy of the police dossier, which was placed before the District Magistrate for his subjective satisfaction in order to detain the detenue. This shows total non-application of mind on the part of the detaining authority. He has dittoed the Police direction without applying his mind to the facts of the case." This Court again in the case of Noor-ud-Din Shah v. State of J&K & Ors. 1989 SLJ 1, quashed detention order, which was only a reproduction of dossier supplied to detaining authority on the ground that it amounted to non-application of mind. The Court observed : "I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenue in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case. He has acted as an agent of the police. It was his legal duty to find out if the allegations levelled by the police against the detenue in the dossier were really going to effect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenue, so as to prevent him from doing so. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenue, so as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive detention as or detained in the Act, Passing of an order without application of mind goes to the root of its validity, and in that case, the question of going into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act.” A similar situation arose in the case of Jai Singh & Ors. v. State of Jammu & Kashmir AIR 1985 SC 764 , before the Supreme Court. The Court quashed the detention as it found that there cannot be a greater proof of non-application of mind and that the liberty of a subject being a serious matter, it is not to be tripled with in this casual, indifferent and routine manner. The Court observed : "First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jail Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. At the top of the dossier, the name is mentioned as Sardar Jail Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of...." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jail Singh in the dossier is changed into 'you' in the grounds of detention. We are afraid it is difficult of find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner." In view of the above settled legal position, the order impugned on this count alone cannot sustain. 6. Furthermore, a bare perusal of the grounds of detention reveals that the grounds of detention are vague and ambiguous and do not refer to any dates, month or year of the activities, which have been attributed to the detenu. The detention in the preventive custody on the basis of such vague and ambiguous grounds of detention cannot be justified. It may not be out of place to mention here that the preventive detention is largely precautionary and is based on suspicion. The Court is ill-equipped to investigate into the circumstances of suspicion on which such anticipatory action must be mostly based. The nature of the proceeding is incapable of the objective assessment. The matters to be considered by the detaining authority are whether the person concerned, in view of his past conduct judged in the light of the surrounding circumstances and the other relevant material, is likely to act in a prejudicial manner as contemplated by the provisions of the law and, if so, Whether it is necessary to detain him with a view to preventing him from so acting. Thus, the Constitutional imperatives of Article 22(5) and the dual obligation imposed on the authority making the order of preventive detention, are twofold: (1) The detaining authority must, as soon as may be, i.e. as soon as practicable, after the detention order is passed, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention, i.e. to be furnished with sufficient particulars to enable him to make a representation which, on being considered, may obtain relief to him. The inclusion of an irrelevant or non-existent ground, among other relevant grounds, is an infringement of the first of the rights and the inclusion of an obscure or vague ground, among other clear and definite grounds, is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenu entitling him to approach the Court for relief. The reason why the inclusion of even a simple irrelevant or obscure ground, among several relevant and clear grounds, is an invasion of the detenu's constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds, and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. Even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is non-existent or misconceived or irrelevant, the order of detention would be invalid. Where the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague or irrelevant the entire order must fall. The satisfaction of detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant data. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention. Irrelevant grounds, being taken into consideration for making the order of detention, are sufficient to vitiate it. A ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention. Irrelevant grounds, being taken into consideration for making the order of detention, are sufficient to vitiate it. One irrelevant ground is sufficient to vitiate the order as it is not possible to assess, in what manner and to what extent, that irrelevant ground operated on the mind of the appropriate authority, and contributed to his satisfaction that it was necessary to detain the detenu in order to prevent him from acting in any manner prejudicial to the security of the State. These are the views and observations made by this Court in Mohd. Yousuf Rather v. State of J&K & Ors., AIR 1979 SC 1925 ; and Mohd. Yaqoob v. State of J&K & Ors., 2008 (2) JKJ 255 [HC]. 7. In view of the aforesaid position obtaining in the matter the other grounds urged in the petition need not to be dealt with and essentially pale into insignificance. 8. Viewed thus, in the context of what has been observed, analyzed and considered in the preceding paragraphs, instant petition is allowed and consequent to which the impugned order of detention bearing No. 28/DMS/PSA/2021, dated 17.11.2021 is quashed, with a direction to the respondents including the Jail Superintendent concerned to release the detenu forthwith from preventive custody unless required in any other case. 9. Disposed of along with all connected CrlM(s). 10. It needs a mention here that in most of the cases the detention record produced by the respondents is in a disorganized manner as it does not bear the index viz. page numbers etc. etc. The Registrar Judicial shall keep the scanned copy of the detention record with the record of the instant file. The learned Advocate General is accordingly requested to impress upon all the Government counsels appearing in the detention matters on behalf of the detaining authority/respondents to submit indexed page-marked detention record wherever directed and any failure in this regard shall be viewed seriously. 11. The record produced by the respondents for perusal of the Court shall be returned to learned counsel for the respondents by the Registry only after doing the needful as directed above.