Adil Ahmad Dar vs Union Territory Of J&K & Ors
2022 Latest Caselaw 1769 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                                Reserved on: 02.09.2022
                                                Pronounced on: 13.10.2022


                         WP(Crl.) No.208/2021

ADIL AHMAD DAR                                      ...PETITIONER(S)

              Through: - Mr. Shah Ashiq Hussain, Advocate.
Vs.

UNION TERRITORY OF J&K & ORS.                    ...RESPONDENT(S)

              Through: - Mr. Faheem Shah, GA.

CORAM:        HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                 JUDGMENT

1) By the instant petition, legality and veracity of the detention order

No.DMB/PSA/09 of 2021 dated 18.10.2021, issued by District

Magistrate, Budgam (for brevity "Detaining Authority") is challenged.

In terms of the aforesaid order, Adil Ahmad Dar son of Bashir Ahmad

Dar resident of Syed Mohalla Narbal, Budgam (for short "detenu") has

been placed under preventive detention and lodged in Central Jail,

Kotbhalwal.

2) The petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without application

of mind, inasmuch as the grounds of detention are mere reproduction of

the dossier. It has been further contended that the Statutory procedural

safeguards have not been complied with in the instant case. It has been

further urged that the material which formed basis of the grounds of

detention and the consequent order of detention has not been provided to

the detenue.

3) The respondents, in their counter affidavit, have disputed the

averments made in the petition and insisted that the activities of detenue

are highly prejudicial to the security of the State. It is pleaded that the

impugned detention order has been passed validly and after following all

norms and procedural safeguards. It has also been contended that the

detention order and grounds of detention were handed over to the

detenue and same were read over and explained to him and the whole

material relied upon by the detaining authority has been furnished to the

detenue. It is averred that the grounds urged by the petitioner are legally

misconceived, factually untenable and without any merit. The

respondents have produced the detention records in order to buttress the

contentions raised in the counter affidavit.

4) I have heard learned counsel for parties and perused the detention

record.

5) Learned counsel for the petitioner, while seeking quashment of the

impugned order, projected various grounds but his main thrust during the

course of arguments was on the following grounds:

(I) That the grounds of detention are verbatim copy of the dossier, which shows that the detaining authority has not applied its mind while formulating the grounds of detention;

(II) That there has been non-application of mind on the part of the detaining authority as the detenue has already been

admitted to bail in FIR No.51/2021 for offences under Sections 7/25 Arms Act, 23, 39 of ULAP Act registered with P/S Magam but this fact has not been mentioned in the grounds of detention.

6) While going through the detention records, the first ground

projected by the learned counsel for the petitioner gets support from the

material on record. The grounds of detention are replica of dossier with

interplay of some words here and there, which exhibits non-application

of mind on the part of detaining authority. In the process, the deriving of

subjective satisfaction has become causality. While formulating the

grounds of detention, the Detaining Authority has to apply its own mind.

It cannot simply reiterate whatever is written in the police dossier. In my

aforesaid view, I am supported by the judgment of the Supreme Court in

the case of Jai Singh and ors vs. State of J&K (AIR 1985 SC 764).

7) The grounds 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. The similarity of contents of grounds of

detention and police dossier in the instant case clearly exhibits

mechanical functioning of the detaining authority, thereby making the

impugned order of detention unsustainable in law. As already noted, in

the instant case, it is 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. The impugned order of detention is, therefore, unsustainable

in law on this ground also.

8) Next it has been contended that the impugned detention order

suffers from non-application of mind on the part of the detaining

authority, inasmuch as the grounds of detention do not bear any

reference to the fact that the petitioner had been admitted to bail in FIR

No.51/2021 in terms of order dated 18.01.2021 passed by learned

Special Judge Designated under NIA Act, Srinagar. A copy of the order

issued by the said Court in this regard has been placed on record by the

petitioner. The non-mentioning of this important fact in the grounds of

detention exhibits non-application of mind on the part of detaining

authority. This shows that the detaining authority has not meticulously

examined the record while passing the impugned order of detention

which renders the same unsustainable in law. I am supported in my

aforesaid view by the judgment of the Supreme Court rendered in the

case of Anant Sakharam Raut vs. State of Maharashtra &Ors. AIR 1987

SC 137.

9) Viewed thus, the petition is allowed and the impugned order of

detention is quashed. The detenue is directed to be released from the

preventive custody forthwith provided he is not required in connection

with any other case.

10) The record, as produced, be returned to the learned counsel for the

respondents.

(Sanjay Dhar) Judge Srinagar 13.10.2022 "Bhat Altaf, PS"

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