Jammu & Kashmir High Court Grants Relief To Islamic Cleric Detained Based On FIR Which Concluded In Acquittal

Madnee had argued that the detention order lacked independent application of mind and was influenced by a dossier furnished by a sponsoring agency. He also stated that the impugned order passed in 2022 was based on a FIR lodged back in 2011 in which he already stood acquitted in the year 2020. He argued that he was denied an effective representation, thus infringing his Constitutional and statutory rights guaranteed under Article 22(5) of the Constitution and Section 13 of the Jammu & Kashmir Public Safety Act.

The respondent-authorities maintained that all statutory requirements and constitutional guarantees had been fulfilled and complied with during the detention process.

"Perusal of the record tends to show that the grounds of detention bear reference to FIR (supra) in which the detenu is stated to have been acquitted. There is nothing stated in the reply filed by the respondent no. 2 regarding the acquittal of the detenu in the said FIR reflecting complete unawareness of the respondents," Justice Javed Iqbal Wani observed at the outset.

He emphasised that an order for preventive detention against a person already in custody must be supported by compelling reasons.

Noting that the detaining authority had failed to express any compelling reason for the detention, the bench referenced Surya Prakash Sharma v. State of U.P and Others, reported in 1994 and observed,

“Perusal of the grounds of detention/order of detention would manifestly reveal that the detaining authority has not drawn any satisfaction as per the mandate laid down by the Apex Court in the case of Surya Parkash Sharma (supra), while passing the impugned detention order against the detenu and in fact has failed to express any compelling reason thereof. The impugned order, thus, in law, does not sustain on this count alone”.

Additionally, the Court highlighted that the grounds of detention were identical to the police dossier, indicating a lack of independent application of mind by the detaining authority.

“In law, it is the detaining authority, which has to go through the reports and other inputs received from concerned police and other agencies and on such perusal draw 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”, Justice Wani recorded.

In light of these observations, the court allowed the petition and quashed the detention order, directing the authorities, including the jail authorities, to release Madnee forthwith unless required in any other case.

Case Title: Abdul Majeed Dar alias Madnee Vs UT of Jammu and Kashmir & others

Citation: 2023 LiveLaw (JKL) 259

Coram: Justice Javed Iqbal Wani

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