J&K&L High Court Orders Probe By Anti-Corruption Bureau Into Leakage Of PSA Detention Order Even Before Its Execution

A bench comprising Justice Rajnesh Oswal was hearing a plea filed by the petitioner through his brother, for issuance of writ of certiorari for quashing of the detention under J&K Public Safety Act .

In his plea the petitioner through his brother had stated that few days back, the petitioner came to know that the UT administration had issued order under the Act and the respondents are bent upon to arrest the petitioner in pursuance of the said order of detention. The petitioner had impugned the order of detention on the ground that the order was unreasonable, arbitrary and mala fide and the grounds are vague, extraneous and irrelevant.

Contesting the petition, the counsel for UT administration argued that the petitioner is an absconder and he is avoiding the execution of the detention warrant. He further argued that the order of detention cannot be interfered at pre-execution stage lightly and particularly when the petitioner has absconded. The counsel for the respondents laid much stress that the brother of the petitioner has procured the order of detention by illegal means and it clearly shows the clout of the petitioner and his brother.

Adjudicating on the matter and perusing the available record,  the bench observed that the present writ petition has been filed by the petitioner through his brother, and the affidavit too has been sworn in by the brother of the petitioner. The petitioner has not chosen to file the writ petition himself and also there is no power of attorney/authority, executed by the petitioner in favour of his brother to file the present writ of certiorari. It is not the case set up by any remote reference in the writ petition that the petitioner is under any disability that has incapacitated him to file the writ petition himself. It gives credence to the version of the respondents that the petitioner has absconded, the court noted.

Declining to interfere with the order of detention the bench observed.

"That the present writ petition cannot be considered as a writ petition filed by the petitioner but in fact a writ petition filed by the brother of the petitioner. It is settled law that the writ petition can be filed only by a person who falls within the category of "person aggrieved"," the bench underscored.

The court further observed that it is at a loss as to understand how the order of detention landed in the hands of the petitioner or his brother without there being any execution of the said detention order. The bench noted that there is no averment in the petition that the detention order and communications were obtained by any legitimate means such as under Right to Information Act etc. and there only exists a simple averment in the petition that few days back, the petitioner came to know about the detention order, but there is no averment as to how the petitioner obtained the order of detention and the communications mentioned above.

"This is a very serious matter and it surely points to the connivance of the officials at the respondents' end either with the petitioner or his brother," Justice Oswal observed.

In view of the gravity of the act, the Court directed the Director, Anti-Corruption Bureau, Union Territory of J&K to enquire the issue with regard to the connivance of the officials of the respondents with regard to fact as to how these documents landed with the detenu or his brother without execution of the detention order.

Expressing strong displeasure, the bench directed the ACB that if prima facie found to be involved in the acts of omission/commission amounting to offence, then to investigate by registering FIR against all the involved persons.

Dismissing the petition, the court also directed the Director, Anti-Corruption Bureau to file the compliance report within a period of one month from the date of receipt of this order.

Case Title: Mohammad Yousaf  vs Union Territory of J&K and others

Citation: 2022 LiveLaw (JKL) 70 

Click Here To Read/Download Judgment