The Hon’ble Jammu& Kashmir and Ladakh High Court opined that while detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail in the detention is serious lapse which in turn gives rise to the inference that there is non-application of mind.
Brief Facts:
The brother of the Petitioner has filed the present petition as the Divisional Commissioner has placed the Petitioner under preventive detention under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988.
Contentions of the Petitioner:
It was argued that no compelling reason has been given for detention. Further, That the grounds of detention are verbatim reproduction of the police dossier.
Contentions of the Respondents:
It was contended that all the statutory requirements were fulfilled. It was argued that the detention is not punitive in nature but to prevent the activities of the detenue on the basis of his past conduct. The subjective satisfaction of the detaining authority cannot be normally interfered by the constitutional court unless the court is otherwise satisfied that the same is apparently visible from the detention order.
Observations of the Court:
It was opined that while detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail in the detention is serious lapse which in turn gives rise to the inference that there is non-application of mind.
It was observed from the facts of the case that detention order did not reveal as to what was the reason for passing detention order after the Petitioner was granted bail.
The Bench ruled that the right of detenue to prefer representation on his detention is a fundamental right enshrined under Article 22(5) of the Constitution of India. There is no escape by the authorities not to consider the representation and pass orders on the same accepting or rejecting the representation. Non-consideration of the representation goes to core of the case.
The decision of the Court:
Based on the aforementioned reasons, the petition was accordingly allowed and the Petitioner was ordered to be released from the custody.
Case Title: Owais Naseer Sheikh @ Owais v. Union Territory of Jammu and Kashmir & Ors.
Case No.: HCP No. 50/2023
Coram: Hon’ble Justice Puneet Gupta
Advocate for Petitioner: Adv. Ms. Palvi
Advocates for Respondents: Advs. Ms. Maha Majeed, Mr. Mohsin ul Showkat Qadiri
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