Rayees Ahmad Chack vs Ut Of J&K And Anr
2021 Latest Caselaw 109 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                             (THROUGH VIRTUAL MODE)

                                                                     Reserved on: 03.02.2021
                                                                     Pronounced on:12.02.2021

                                                                          WP(Crl) No.656/2019

                      Rayees Ahmad Chack                                        ...Petitioner(s)
                                     Through: - Mr. N. A. Ronga, Advocate.
                               Vs.

                      UT of J&K and anr.                                        ...Respondent(s)

                                     Through: - Ms. Asifa Padroo, AAG,

                      CORAM:         HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.


                                                  JUDGEMENT

1) Impugned in this petition is order of detention passed by District

Magistrate, Kulgam (the detaining authority) vide order No.74/DMK/

PSA/19 dated 05.09.2019, whereby one Rayees Ahmad Chack S/o

Ghulam Nabi Chak R/o Chackpora Manzgam D. H. Pora District

Kulgam (the detenue) has been placed in preventive detention with a

view to prevent him from acting, in any manner, prejudicial to the

security of the State. The detention of the detenue has been ordered on

the basis of material supplied to the detaining authority by

Superintendent of Police, Kulgam, vide his letter dated 28 th of August,

2019.

MOHAMMAD ALTAF BHAT 2021.02.12 16:27 I attest to the accuracy and integrity of this document

2) As per the allegations contained in the grounds of detention, the

detenue is resident of Manzgam D. H. Pora and 20 years old. He has

read up to 7th class. He, in association with chronic stone pelters and

Over Ground Workers of active terrorists, has been indulging in

disruption of maintenance of public order by way of pelting stones upon

security forces/police and causing extensive damage to the government

and public property. It is also noted that on 29th of April, 2019, on the

basis of a docket received from SHO, P/S, Manzgam, FIR No.16/2019

under Section 147, 148, 149, 336, 427, 307 RPC was registered in P/S,

Manzgam and investigation taken up. It is stated that during

investigation, the detenue was arrested on the basis of his involvement in

the instant case. Keeping in view involvement of the detenue in the

activities detailed in the FIR, it has been thought imperative by the

detaining authority to place the petitioner in preventive detention with a

view to prevent him from continuing with his activities calculated to

threaten security of the State.

3) The impugned order of detention has been assailed by the

petitioner on numerous grounds. However, Mr. N. A. Ronga, learned

counsel for the petitioner, has pressed vehemently the ground that the

order impugned is vitiated for total non-application of mind on the part

of detaining authority. It is submitted that though the detaining authority

has shown its awareness that the detenue was arrested in FIR

No.16/2019 but is totally silent about the bail that was granted in favour

of the detenue by the competent court of law. He, therefore, submits that MOHAMMAD ALTAF BHAT 2021.02.12 16:27 I attest to the accuracy and integrity of this document

once the detenue had been bailed out by the competent court of law in

FIR No.16/2019 and there is no allegation that after his release in the

aforesaid FIR that the detenue had again indulged in the activities

prejudicial to the security of the State, there was no reason or

justification to place the petitioner under preventive detention.

4) The writ petition is opposed by the respondents who have filed

reply affidavit on behalf of the detaining authority. The factual

submissions made by the petitioner have not been refuted in the reply

affidavit by the respondents. The respondents have relied upon the

judgment of the Supreme Court in the case of Hardhan Saha v. State of

W.B (1975) 3 SCC 198, and submit that the detention order is based on

the subjective satisfaction of the detaining authority and the same cannot

be gone into by this Court in exercise of its extraordinary writ

jurisdiction.

5) Having heard learned counsel for the petitioner and perused the

record, I am of the view that the order impugned is vitiated by non-

application of mind of the detaining authority and, therefore, cannot

sustain in law. Indisputably, the detenue, as is indicated in the grounds of

detention, was arrested in FIR No.16/2019. Petitioner has specifically

claimed in his petition that he was released on bail and was subsequently

taken into preventive detention in the execution of impugned order of

detention. There is nothing in the grounds of detention or in the reply

affidavit to indicate that the detaining authority was aware that the

detenue had been released on bail in FIR No.16/2019 and that there was MOHAMMAD ALTAF BHAT 2021.02.12 16:27 I attest to the accuracy and integrity of this document

no remedial measure taken by the State to assail the order granting bail

in favour of the detenue. There is also nothing on record to indicate that

after the release on bail in FIR No.16/2019, the detenue had again

indulged in the activities prejudicial to the security of the State. The

impugned order is thus vitiated for total non-application of mind on the

part of detaining authority and, therefore, cannot sustain in law.

6) Taking conspectus of the aforesaid discussion, this petition is

allowed. The impugned order of detention is set aside and the detenue is

directed to be released from the preventive detention forthwith, provided

he is not involved in any other case.

(Sanjeev Kumar) Judge Srinagar 12.02.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:         Yes/No
                                           Whether the order is reportable:       Yes/No




MOHAMMAD ALTAF BHAT
2021.02.12 16:27
I attest to the accuracy and
integrity of this document