'If Detenue Was In Custody, It Wouldn't Have Been Possible For Him To Indulge In Stone Pelting' J&K HC Quashes A Detention Order Passed 'In A Mechanical Manner' [Read Order]

In spite of this, the Court observed, it was recorded in the grounds of detention that "the detenue is presently playing an active role in implementing programmes of secessionist elements on the ground by resorting to illegal activities such as stone pelting etc."

In this Context, the Bench of Justice Sanjay Dhar observed,

"If the detenue was in custody, it would not have been possible for him to indulge in activities like stone pelting etc. This goes on to strengthen the contention of the learned counsel for the petitioner that the grounds of detention have been formed in a mechanical manner in this case"

Matter before the Court

Challenge in the petition was thrown to the order No.DMS/PSA/144 dated 30.11.2019, issued by District Magistrate, Srinagar (for brevity "Detaining Authority") whereby Shri Nasir Ahmad Mir son of Abdul Rashid Mir resident of Malik Mohalla Habbak Chanpora District Srinagar (for short "detenu") had been placed under preventive detention directing his lodgement in Central Jail, Srinagar.

Contentions Raised

The counsel for the petitioner, while seeking the quashment of the impugned order, projected various grounds but the main grounds that prevailed during the discussion were:

(a) That the grounds of detention are a verbatim copy of the dossier, which shows that the detaining authority has not himself prepared the grounds of detention which is prerequisite for him before passing any detention order, thus non-preparation of grounds of detention by the detaining authority renders the impugned order bad in law;

(b) That the detenue has been disabled from making an effective representation against his detention as the translated copies of grounds of detention have not been supplied to him.

In the rebuttal, the Counsel for the respondents made an attempt to justify the passing of the order impugned by contending that the detenue was a habitual stone pelter, inasmuch as there were two FIRs pending against him and on this basis, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention so there was every likelihood of the detenue indulging in similar activities.

It was further contended that all the documents relied upon by the Detaining Authority were, provided to the detenue and in token of having received the same, the detenue has signed the receipt.

It was also urged that the contents of the documents were read over and explained to the detenue in the language understood by him.

Court's Analysis and Decision

The Court was of the view that,

"Preventive detention, in effect, is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, being an exception to Article 21, has to be reasonable and not based on the ipse dixit of the detaining authority."

While citing the ruling of the Apex Court in the Cases of Rekha v. State of Tamil Nadu and anr (2011) 5 SCC 244 and Kamleshwar Ishwar Prasad Patel Vs Union of India and Others [(1995) 2 SCC 51], the Court concluded that,

"whenever preventive detention is called in question in a court of law, the first and foremost task before the Court is to see whether the procedural safeguards, guaranteed under Article 22(5) Constitution of India and Preventive Detention Law pressed into service to slap the detention, are adhered to."

Further, the Court opined that while formulating the grounds of detention, the Detaining Authority has to apply its own mind. It cannot simply reiterate whatever is written in the dossier.

It may be noted that recently the Jammu & Kashmir High Court (Jammu Wing) had quashed a detention order detaining one Surinder Singh under Section 8 of the Jammu & Kashmir Public Safety Act, 1978.

The Single Bench of Justice Puneet Gupta had observed,

"No specific wording is required to be maintained while passing the order of detention while assessing the case in a subjective manner but the order has to reflect that proper application of mind has been applied keeping in view all the facts and circumstances of the case. Mere reproduction of the dossier in the detention order cannot justify the detention order in such circumstances." (emphasis supplied)

Adverting to the facts of the instant case, the Court noted, it is clear from the record that the dossier and the grounds of detention contain almost similar wording which shows that there has been no application of mind on the part of the Detaining Authority.

Latly, the Court said that a detenue has not only to be furnished the translated versions of the grounds of detention, particularly when a detenue is semi-literate, as is the case at hand, but even the executing officer has to file an affidavit to show that he has fully explained the grounds of detention to the detenue in the languages which he understands.

"None of these requirements have been followed in the instant case, at least the records suggests the same", said the Court.

In fact, the receipt of detention papers bearing the signature of the detenue, which was part of the detention record, bear the following expression:

"…The contents of the detention warrant/ grounds of detention have been read over and explained to the detenue in Kashmir/Urdu/ English language which he understood fully…"

The Court further noted that from the perusal of aforesaid expression, it was not clear as to in which language the grounds of detention have been read over and explained to the detenue, whether it was Kashmiri, Urdu or English language.

The Court further opined that it should have been discernible from the record as to in which language the grounds of detention were read over and explained to the detenue, which is not the case.

Therefore, the Court was of the view that the contention of the petitioner that the grounds of detention were not explained to him in the language which he understands gets strengthened from the detention record.

Lastly, the Court said,

"The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner." (emphasis supplied)

The impugned order of detention bearing No. DMS/PSA/144 dated 20 WP(Crl.) No.674/2019 30.11.2019, passed by respondent No.2-District Magistrate, Srinagar, was, therefore, unsustainable in the opinion of the court.

Accordingly, the same was quashed. The detenue was directed to be released from the preventive custody forthwith.

Notably, on Monday (28^th September), the Jammu & Kashmir High Court released a man allegedly detained as Lashkar-e-Taiba worker while opining that the detaining authorities must be given proper training about requirements of the law in passing detention orders.

Case Details:

Case Title: Nasir Ahmad Mir v. Union Territory of J&K & anr.

Case No.: WP(Crl.) No.674/2019

Quorum: Justice Sanjay Dhar

Appearance: Advocate M. Ashraf Wani (for the Petitioner); Sr. AAG. B. A. Dar (for the Respondents)