The High Court of Jammu & Kashmir expounded that the detention order being a replica of the dossier is a classic example of non-application of mind by the Detaining Authority. The Court further observed that preventive detention should not be used as a tool to keep a person in custody for an indefinite time without trial.
Brief Facts:
The present Writ Petition is filed against the order of detention issued by the Respondent.
It is contended by the Petitioner that the detention order has been passed mechanically and not by applying mind as the Constitutional and Statutory procedural safeguards are not complied with. It is the case of the Detenue that he was arrested by the Security Forces without any justification and an FIR was lodged against him. The Detenue was apprehended and subsequently bailed out as the offences were bailable.
Contentions of the Petitioner:
The Petitioner contended that there was a delay of almost 2 years in executing the order on part of the Respondents and therefore, the same is bad in law. It was argued that merely because an FIR was registered, the Petitioner cannot be detained and the basis for issuing detention was the registration of the FIR. The crux of the arguments put forward by the Petitioner is that the Magistrate has only perused the dossier and not any other connected documents which show that the detention order was passed without any application of mind. It was contended that the Detenue was denied effective representation which violates Section 13(1) of the Public Safety Act, 1978.
Contentions of the Respondent:
It was contended by the Respondents that the Detaining Authority applied its mind to decide to detain the Detenue as the activities of the Detenu be prejudicial to the maintenance of public order. It was argued that the Detenue was given the entire record and informed about his right to submit representation. It was also contended that the adequacy of the material used by the Detaining Authority is not subject to judicial review.
Observations of the Court:
The Court observed that the order is a complete replica of the dossier and hence, is a classic example of total non-application of mind by the Detaining Authority. It was opined that for passing the detention order, subjective satisfaction is a prerequisite. But in the present case, the Detaining Authority has passed the order casually by re-iterating the content of the dossier. Therefore, the detention order was held to be illegal and liable to be quashed.
The High Court further observed that since the Detenue was already granted bail, the Respondents should have approached the higher forum to get the bail canceled and not issue the order of detention. It was noted that detention cannot be a substitute for ordinary law. The Court explicitly stated that preventive detention is not to be used as a tool for keeping a person in perpetual custody without trial.
The Jammu & Kashmir High Court remarked that the Detaining Authority did not arrive at the subjective satisfaction on an objective basis and no event or details have been proved to show grounds for detention. As a result, the Detenu was denied effective representation. It was noted that the allegations in the said FIR cannot be the basis for the issuance of the detention order.
The decision of the Court:
Therefore, based on the aforementioned reasons, the petition is allowed, and the detention order is set aside.
Cause Title: Sajad Ahmad Bhatt v. UT of J&K and Anr.
Bench: Hon’ble Mr. Justice Wasim Sadiq Nargal, Judge
Decided on: November 07th, 2022
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