On 22nd September 2020 the High Court of Jammu & Kashmir in the case of Nasir Ahmad Mir V. Union Territory of J&K & anr. comprising of a single Bench of Justice Sanjay Dhar, noted that it was clear from the dossier as well as the grounds of detention that at the time of passing of the impugned order, the detenue was in custody.
Factual Background
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.
Submissions on behalf of the Appellant
The counsel for the petitioner, while seeking the quashing of the impugned order, projected various grounds but the main grounds that prevailed during the discussion were:
- 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 a 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;
- 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.
Submissions on behalf of the respondent
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 Analysis
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.”
From a perusal of the aforesaid observations of the Supreme Court, it is clear that the ground of detention and the dossier, if in similar language, go on to show that there has been non-application of mind on the part of the Detaining Authority. Adverting to the facts of the instant case, it was clear from the record that the dossier and the grounds of detention contain almost similar wording which shows that there has been non-application of mind on the part of the Detaining Authority.
Lastly, 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.
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.
Judgment
“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.”
The impugned order of detention bearing No. DMS/PSA/144 dated 30.11.2019, passed by respondent No.2-District Magistrate, Srinagar, is, therefore, unsustainable. Accordingly, the same is quashed. The detenue is directed to be released from the preventive custody forthwith.
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