Jammu & Kashmir High Court

Abdul Hamid Khan vs Ut Of J&K And Ors on 23 August, 2023

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                 WP(Crl) No. 69/2022 (O&M).

                                                 Reserved on:       14.08.2023
                                                 Pronounced on:     23.08.2023

Abdul Hamid Khan                                                   .....Petitioner

                      Through: Mr. S. S. Ahmed, Advocate
                               Mr. Zulqarnain CHoudhary,
                               Mr. Sayed Majid Shah, Adv.
                               Mr. M. Aleem Beg, Adv.

                Vs

UT of J&K and ors.                                              ..... Respondents

                      Through:    Mrs. Monika Kohli, Sr. AAG
                                  Mr. Eishaan Dadhichi, GA


Coram:   HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE


                                 JUDGMENT

PRAYER OF THE PETITIONER

1. Instant petition has been filed by the petitioner (hereinafter to be

referred as detenue) through his nephew, namely Farooq Ahmad Khan seeking

quashment of detention order No.30/PSA of 2022 dated 18.10.2022 passed by

District Magistrate, Ramban, respondent No. 2 herein, whereby the detenue has

been detained under Section 8 of the Jammu and Kashmir Public Safety Act,

1978 (hereinafter to be referred as, the PSA) and has been lodged in the Central

Jail Kot Bhalwal, besides seeking writ of Mandamus commanding the

respondents to release him forthwith and pay him compensation.

ARGUMENTS ON BEHALF OF THE PETITIONER

2. It is specific case of the detenue that he is neither involved nor indulged

in any illegal or anti-national activity in his whole life and is a peace loving

citizen and believes in the sovereignty and integrity of India. The short

submission advanced in this petition by the learned counsel for the petitioner is

that order of detention passed by the detaining authority is illegal, arbitrary and

without any lawful justification as the whole material which has been relied

upon by the detaining authority has not been supplied to the detenue with the

result that the detenue has been denied of making an effective representation to

the respondents. It is stated that the detenue has been served with a copy of the

detention order No.30/PSA of 2022 dated 18.10.2022 and also communication

No.DMR/651-53 dated 18.10.2022 along with grounds of detention bearing No.

DMR/636-43 dated 18.10.2022. Further case of the detenue is that detaining

authority i.e. respondent No. 2 has solely relied upon the dossier submitted by

respondent No. 3 vide communication No. CB/DOSSER/22/14159 dated

12.10.2022 as the detenue was legally entitled for the copy of the said dossier

but the same was not furnished to him and also the material, on the basis of the

which, the said dossier has been framed and the order of detention has been

passed has also not been supplied to him.

3. Further contention of the detenue is that detaining authority has passed

the order of detention on the basis of police dossier and also number of other

DD reports which were never entered in the daily dairy of the Police Station,

Banihal regarding so called activities of the detenue which, ultimately, led to the

passing of the order of detention by respondent No.2.

4. It is specific case of the detenue that all the material relied upon by the

detaining authority which led to the passing of the order of detention has not

been supplied and inaction on the part of the respondents is violative of the

constitutional rights of the detenue to make effective representation. It is further

averred that although the detaining authority in communication No. DMR/651-

53 dated 18.10.2022 has conveyed the detenue that he can file representation

before the Government against the order of detention and consequently, the

detenue filed a detailed representation to the Government in absence of the

material supplied to him, and the said representation although was received by

the respondents, yet the respondents have not accorded any consideration,

despite lapse of considerable period.

5. Learned counsel submits that even a detailed representation has already

been preferred before the Chairman Advisory Board constituted under PSA and

the outcome of the same has not been conveyed to the detenue as on date, which

vitiates the detention passed against him. He further argues that the detenue is

not involved in any criminal activity or any anti national activity as alleged in

the dossier and it was incumbent on the part of detaining authority to arrive at

subjective satisfaction before passing the order of detention and detaining

authority was under a legal obligation to specify the compelling reasons which

led to the passing of the detention order. According to learned counsel for the

detenue, it vitiates the order of detention and the order of detention cannot

sustain the test of law and liable to quashed.

6. Further case which has been advanced by the learned counsel for the

detenue is that the detenue was detained on 18.10.2022 and was lodged at Police

Station, Banihal and from there, he was shifted to P/S Ramban and

subsequently, he was shifted to Police Station, Pacca Danga on 19.10.2022 and

finally on 20.10.2022, he was lodged in Central Jail Kot Bhalwal, Jammu. It is

also stated that on 20.10.2022, the respondents conveyed the grounds of

detention to the detenue belatedly and thus non-furnishing of the grounds of

detention at the earliest by the respondents, as per learned counsel, violates the

fundamental rights of the detenue guaranteed and enshrined under Article 22(5)

of the Constitution of India which mandates that when any person is detained in

pursuance of an order made under the Public Safety Act, the authority making

the order shall, as soon as may be, communicate to such person the grounds on

which the order has been made and shall afford him the earliest opportunity of

making a representation against the order.

7. Another ground which has been advanced by the learned counsel for

the detenue is that the detention even otherwise, cannot sustain the test of law

and is vitiated on the ground that detaining authority has deliberately and

intentionally preferred not to inform the detenue that he can make representation

to the detaining authority. He further submits that if the detaining authority

would have provided all the material and informed the detenue about his right to

make an effective representation before the detaining authority, in that

eventuality, the detenue would have been in a position to make an effective

representation before detaining authority. Thus, the procedure, as envisaged

under law, has not been followed and on this ground alone, the order of

detention cannot sustain the test of law and is liable to be set aside.

8. It has been further argued by learned counsel for the detenue that

impugned detention exhibits total non application of mind as the order of

detention has been passed mechanically. With a view to substantiate his claim,

learned counsel for the detenue brought the attention of this Court to averments

pleaded in ground (v), wherein, he has given a detail of other detention orders

passed by the detaining authority and a perusal whereof, reveals that impugned

detention order is a cyclostyle copy of other detention orders and the language

used is per verbatim the same, which has been reproduced in the detention order

which is subject matter of the present petition. The details of other detention

orders are as under:

"(a) Order No. 26/PSA of 2022 dated 18.10.2022

(b) Order No. 27/PSA of 2022 dated 18.10.2022

(c) Order No. 28/PSA of 2022 dated 18.10.2022

(d) Order No. 29/PSA of 2022 dated 18.10.2022

(e) Order No. 30/PSA of 2022 dated 18.10.2022"

9. According to Mr. Ahmed, learned counsel appearing for the detenue,

there is no application of mind by the detaining authority before arriving at the

subjective satisfaction and in absence of that, the order impugned cannot sustain

the test of law and is liable to be set aside.

ARGUMENTS ON BEHALF OF THE RESPONDENTS

10. Per contra, separate replies stand filed on behalf of the respondents No.

2 and 3. While the case was being argued, Mr. Eishaan Dadhichi, learned GA

appearing for the respondent No. 3 was directed to ascertain from the record and

to apprise this court whether the whole material (with particular reference to the

dossier and the DD reports) which led to the passing of the order of detention

has been supplied to the detenue. Learned counsel, after examining the record,

has fairly admitted on the basis of record that the copy of the dossier and the DD

reports which were the basis of passing the order of detention, have not been

supplied to the detenue. He has also referred to the execution report which has

been placed on record as annexure 2 along with the reply filed by respondent

No.3, a perusal whereof, reveals that detention order (one leaf), notice of

detention (01 leaf), grounds of detention (03 leaves, Dossier of detention (nil)

Copies of FIR, Statements of witnesses and other related relevant documents

(nil) (total 05 leaves) have been handed over to the above said detenue at Central

Jail, Kot Bhalwal, Jammu on 20.10.2022 against the proper receipt.

11. Learned counsel for the respondents further submits that insofar as the

contention of the learned counsel for the detenue that the detenue has not been

informed for making an effective representation to the Government as well as

the detaining authority is concerned, the same is falsified in light of the

execution report, wherein detenue has been informed well in advance to file

representation to the Government as well as detaining authority against his

detention order if he so desires and this aspect of the matter finds mention in the

execution report where the detenue is signatory and has acknowledged the same.

Thus, the contention of the learned counsel for the detenue, as per learned

counsel for the respondents, is contrary to the record and is liable to be rejected.

12. Further stand taken by the respondents is that respondent No. 2 has

taken all the material facts and circumstances into account and after due

application of mind passed the order of detention under the provisions of Section

8 of PSA. He further submits that detenue has been found involved in anti

national, anti social and harmful activities which are highly prejudicial to the

peace, prosperity, tranquility, integrity and security of UT of the J&K,

particularly, in Banihal area. Further case of the respondents is that contents of

the grounds of detention and the order of detention were read over to the detenue

in English and explained to him in Urdu language which he understood fully as

is evident from a bare perusal of the execution report which has been placed on

record along with reply.

13. Insofar as, the reply filed by the detaining authority is concerned,

respondents have taken a specific stand that the dossier which has been supplied

by the Police agency has been examined in light of the legal position and

circumstances related to the case and, accordingly, detaining authority has

passed order of detention after arriving at a subjective satisfaction. The specific

case which has been projected by the respondents is that detenue was a

notorious person and was in contact with militant, namely, Qasim associated

with LeT outfit living in Pakistan through his mobile No. using social media

apps. It is contended that anti national criminal activities committed by the

detenue are of serious in nature which involved spreading enmity between

people of different religion/region and were detrimental to the harmony as well

as security of the UT of J&K, particularly, district Banihal and, accordingly,

detaining authority, after keeping in view all the material facts and

circumstances passed the order of detention after arriving at a subjective

satisfaction. It has been further stated that Home Department has also approved

the detention of the detenue vide order No. Home/PB-V/2889 of 2022 dated

18.11.2022.

LEGAL ANALYSIS

14. The specific allegation of the detenue that order of detention passed by

the detaining authority against him is without application of mind and is a

cyclostyle copy of the other detention orders the details of which find mention in

ground (v) of the petition using the same language per verbatim has not been

specifically denied by the respondents in the reply. However, learned counsel

for the respondents submitted that he will be producing the record in this regard

with a view to satisfy this Court whether detaining authority has applied its mind

independently in all the cases after arriving at a subjective satisfaction or else

whether the same language has been used in all the six detention orders per

verbatim as alleged by the detenue. However, despite repeated requests, the

record has not been supplied to this Court with a view to ascertain the aforesaid

allegation of the detenue and, accordingly, this Court draws adverse inference

against the respondents and in absence of any specific reply, the averment of the

detenue is admitted.

15. Heard learned counsel for the parties and perused the record.

16. Personal liberty, a cornerstone of democratic societies is guaranteed

under the Constitution. It encapsulates the essence of freedom, self-expression,

and autonomy, while also recognizing the responsibility to prevent harm to

others. A person is not to be deprived of his personal liberty except in

accordance with the procedure established under law as laid down by the

Hon'ble Supreme Court in catena of judgments, which has to be just and fair.

The personal liberty may be curtailed, where a person faces a criminal charge or

is convicted of an offence and sentenced to imprisonment. Where a person is

facing the trial on a criminal charge and is temporarily deprived of his personal

liberty because of the criminal charge framed against him, he has an opportunity

to defend himself and to be acquitted of the charge in case the prosecution fails

to bring home his guilt. Where such a person is convicted of offence, he still has

satisfaction of having been given the adequate opportunity to contest the charge

and also adduce the evidence in his defence.

17. The framers of the Constitution of India have incorporated Article 22 in

the Constitution of India, so as to leave room for placing a person under the

preventive detention without a formal charge and trial, and without such a

person being held guilty of an offence and sentenced to imprisonment by a

competent court. Its aim and object are to save the society from the activities

that are likely to deprive a large number of people of their right to the life and

peaceful co-existence. In such a case it would be dangerous for the people at

large, to wait and watch as by the time the ordinary law is set into motion, the

person, having the dangerous designs, would execute his plans, exposing the

general public to risk and causing the colossal damage to the life and property. It

is, for that reason, necessary to take the preventive measures and prevent a

person bent upon to perpetrate the mischief from translating his ideas into

action. Article 22 of the Constitution of India, therefore, leaves scope for

enactment of the preventive detention laws.

18. The essential concept of preventive detention is that detention of a

person is not to punish him for something he has done, but to prevent him from

doing so. It is typically used as a tool to safeguard public safety and security,

especially in situations where there is a reasonable belief that an individual

poses a threat to society. The ordinary criminal process is not to be

circumvented by ready resort to preventive detention. The order of preventive

detention is passed with a view to prevent the person from committing such

illegal activities in future which may be prejudicial, harmful and disturbing the

public order. The preventive detention is a serious invasion of personal liberty

and the normal methods open to a person charged with commission of any

offence to disprove the charge or to prove his innocence at the trial are not

available to the person preventively detained and, therefore, in prevention

detention jurisprudence whatever little safeguards the Constitution and the

enactments authorizing such detention provide are of utmost importance and

must be strictly adhered to. The basis of detention is satisfaction of the executive

of a reasonable probability of likelihood of detenue acting in a manner similar to

his past acts and preventing him by detention from doing the same.

19. In the present case, vague allegations have been leveled against the

detenue that his activities are threat to the security, public order and peaceful

atmosphere of Banihal and its adjoining areas and for his anti-national, anti-

social, highly harmful activities prejudicial to peace, prosperity, tranquility,

integrity and security of UT of J&K, the order of detention has been passed

without specifying the details of such incidents or evidence which vitiates the

order of detention as the same is without application of mind. Assuming that

there were some allegations against the detenue viz-a-viz alleged criminal

activities then the respondents ought to have resorted to the criminal law rather

than taking recourse to the preventive laws and the compelling reasons for

resorting to the preventive detention have not been spelled out in the grounds of

detention.

20. Reliance is placed on the judgment passed by the Hon`ble Supreme

Court in Haradhan Saha v. State of W.B. reported as (1975) 3 SCC 198,

wherein it has been made clear that the preventive detention and prosecution or

not synonyms and have different purposes. The relevant extract of the

observation made by the court is as under:

"32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu."

21. Again in Jaya Mala v. Home Secretary, Government of J&K (1),

reported as (1982) 2 SCC 538, the Hon`ble Supreme Court has held that if every

infraction of law having a penal sanction by itself is a ground for detention

danger looms large that the normal criminal trials, and criminal courts set up for

administering justice will be substituted by detention laws, the relevant extract

whereof is reproduced as under:

"7. .......It is not for a moment suggested that power under the preventive detention law cannot be exercised where a criminal conduct which could not be easily prevented, checked or thwarted, would not provide a ground sufficient for detention under the preventive detention laws. But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the

maintenance of public order. Non-application of mind of the detaining authority becomes evident from the frivolity of grounds on which the detention order is founded."

22. Recently in Pramod Singla v. Union of India and Others reported as

2023 SCC OnLine SC 374, Hon`ble Supreme Court has held as under:

"25. ......... preventive detention laws in India are a colonial legacy, and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the Courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue."

23. From the record it is clear that the respondent No.3 has failed to gather

any evidence to implicate the detenue under any substantive law and has also

failed to gather any incriminating material against the detenue to satisfy the

requirements of substantive law to book or apprehend the detenue. Even the

respondent No.2, i.e. the Detaining Authority has failed to derive any

satisfaction in the impugned order as to why the detenue could not be

apprehended or booked under any substantive law and as to what were the

compelling circumstances which necessitated the detention of the detenue under

special provisions of the PSA. As such, there were no such compelling reasons

warranting the detention of the detenue under the preventive detention law.

24. The requirement of law is that whole of the record, on which the

detention order is based, has to be made available to the detenue in the language

that he/she understands. It is pertinent to mention here that while going through

the documents, particularly the execution report, annexed with the objections

filed on behalf of respondent, it is evident that the detenue has received copy of

detention order (01 leaf), Notice of detention (01 leaf), grounds of detention (03

leaves), dossier of detention (nil), Copies of FIR, Statements of witnesses and

other related relevant documents (nil) (total 05 leaves). It is, therefore, clear

from the execution report, which forms part of the detention record, that only

detention order, notice of detention and grounds of detention (05) leaves have

been provided to the detenue. However, copy of the police dossier has not at all

been supplied to the detenue which is an important document and is the basis of

passing the order of detention. The contention of the detenue that whole of the

material relied upon by the detaining authority, while framing the grounds of

detention has not been supplied to him, appears to be well-founded in the light

of the documents annexed with the objections and the statement of learned

counsel for the respondents, where, the learned counsel fairly admitted that the

dossier and the DD reports have not been supplied to the detenue. Thus, the

failure on the part of the detaining authority to supply whole material renders

detention illegal and unsustainable.

25. A perusal of the copy of the representation annexed with the petition

shows that the detenue has specifically averred in the said representation that he

has not been served with the dossier submitted by the Senior Superintendent of

Police, Ramban to the District Magistrate, Ramban. Thus, the stand of the

detenue right from the inception is that he has not been provided the whole

material which has formed the basis of grounds of detention. Obviously, the

constitutional right of the detenue has been marred for non supply of these vital

documents in making an effective representation before the Advisory Board.

Thus, vital safeguards against the arbitrary use of law of preventive detention

have been observed in breach by the respondents in this case, rendering the

impugned order of detention unsustainable in law.

26. It needs no emphasis that detenue cannot be expected to make a

meaningful exercise of his Constitutional and Statutory rights guaranteed under

Article 22(5) of the Constitution of India and Section 13 of the J&K Public

Safety Act, 1978, unless and until the material on which detention order is

based, is supplied to detenue. It is only after detenue has all the said material

available that he can make an effort to convince firstly detaining authority and

thereafter the Government that their apprehensions concerning activities of

detenue are baseless and misplaced. If detenue is not supplied the material, on

which detention order is based, he will not be in a position to make an effective

representation against his detention order. Failure on part of detaining authority

to supply material, relied at the time of making detention order to detenue,

renders detention order illegal and unsustainable. While saying so, I draw the

support from the law laid down in Thahira Haris Etc. Etc. v. Government of

Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr.

L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315;

Sofia WP (Crl) No. 205/2021 Gulam Mohd Bham v. State of Maharashtra

& Ors. AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of J&K & Ors,

2009 (1) S.L.J 219.

27. The Hon'ble Supreme Court in Abdul Latif Abdul Wahab Sheikh v.

B.K. Jha & Anr reported as 1987 (2) SCC 22 has made it clear that it is only

the procedural requirements, which are the only safeguards available to detenue,

that are to be followed and complied with as the Court is not expected to go

behind the subjective satisfaction of detaining authority. In the present case, the

procedural requirements, as discoursed and noted above, have not been followed

and complied with by respondents in letter and spirit and as a corollary thereof,

petition requires to be allowed.

28. A similar view has been expressed by the Hon`ble Supreme Court in

Sophia Gulam Mohd. Bham v. State of Maharashtra & Ors. (AIR 1999 SC

3051). The relevant para is reproduced as under:

"The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."

29. An identical view has been expressed by Hon`ble Supreme Court in

Sarabjeet Singh Mokha v. District Magistrate, Jabalpur and ors. reported as

2021 SCC Online SC 1019, wherein at para 22 it has been held as under:

"22. The communication of the grounds is in aid of facilitating the right of the detenue to submit a representation against the order of detention. In the absence of the grounds being communicated, the detenue would be left in the dark in regard to the reasons which have led to the order of detention. The importance which the constitutional provision ascribes to the communication of the grounds as well as the affording of an opportunity to make a representation is evident from the use of the expression "as soon as may be" in the first part in relation to communicating the grounds and allowing the detenue "the earliest opportunity" of availing of the right to submit a representation. Article 22(5) reflects a keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandate an immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the detenue must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest constitutional significance

unless the detaining authority deals with the representation and communicates its decision with expedition."

30. In this context, this Court in Salman Ahmad Dar v. State of Jammu

and Kashmir and others WP(Crl) No.405/2019 [decided on 05.08.2021] has

held that failure on part of detaining authority to supply material, relied at the

time of making detention order to detenue, renders detention order illegal and

unsustainable, para 12 whereof may be usefully quoted:

"12 ...So, it is on the basis of dossier and other connected material/documents that impugned detention order has been passed by detaining authority. Grounds of detention, when looked into, gives reference of two FIRs to have been registered against detenue. Involvement of detenue in aforesaid cases appears to have weighed with detaining authority, while making detention order. The detention record, as noted above, does not indicate that copies of statements recorded under Section 161 Cr. P.C. in above FIRs and other material collected in connection with investigation of aforesaid cases, was ever supplied to detenue; even copy dossier has not been furnished to detenue on the edifice thereof, impugned detention order has been issued."

Aforesaid material, thus, assumes importance in the facts and circumstances of the case. It needs no emphasis, that detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenue has all the said material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If detenue is not supplied the material, on which detention order is based, he will not be in a position to make an effective representation against his detention order. Failure on part of detaining authority to supply material, relied at the time of making detention order to detenue, renders detention order illegal and unsustainable."

31. After going through the record, it is evident that the grounds of

detention are reproduction of the contents of the dossier and I have no hesitation

in holding that the grounds of detention being replica of the dossier, exhibits

total non-application of mind by the detaining authority, and in the process,

arriving at subjective satisfaction has become a casualty which is a prerequisite

for passing the detention order. It is incumbent on part of the detaining authority

to have applied its mind independently after going through all the material

supplied, should have arrived at a conclusion. But in the present case, the

detaining authority has passed the order in a casual manner as the grounds of

detention are replica of the dossier. While formulating the grounds of detention,

the Detaining Authority has to apply its own mind independently after arriving

at a subjective satisfaction and the Detaining Authority cannot simply reiterate

whatever is written in the dossier.

32. I draw support to the above preposition of law from the judgment

passed by the Apex Court in case titled Jai Singh and ors vs. State of J&K

reported as (AIR 1985 SC 764, the operative portion of which is reproduced as

under:

"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention WP (Crl) No. 131/2021 shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and theaddress is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of ......"

Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is

a serious matter and is not to be trifled with in this casual, indifferent and routine manner."

33. On the similar lines, this Court in case of Noor-ud-Din Shah v. State

of J&K &Ors. reported as 1989 SLJ 1, quashed the detention order as it was

found that grounds of detention was reproduction of the dossier supplied to the

detaining authority and held that it amounted to non-application of mind. The

Court observed:

"I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenue in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case, he has acted as an agent of the police. It was his legal duty to find out if the allegations leveled by the police against the detenue in the dossier were really going to effect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenu, so as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive WP(Crl) No. 131/2021 detention as or detained in the Act, Passing of an order without application of mind goes to the root of its validity, and in that case, the question of going into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10- A of the Act."

34. The same principle has been followed by this Court in Balbir Chand v.

UT of J&K and ors. in WP(Crl) No. 54/2020 decided on 01.09.2021, the

relevant extract whereof is as under:

"10. While going through the file and the detention record produced by learned counsel for respondents, I have also an occasion to go through the Dossier prepared by police. While comparing grounds of detention with dossier, it comes to fore that grounds of detention are ditto copy of dossier. It is made clear here that detaining authority may get inputs from different agencies, including Senior Superintendent of Police of concerned District, but responsibility to formulate grounds of detention, however, exclusively rests with detaining authority. It is detaining authority, who has to go through the reports and other inputs received by him from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that a person is to be placed under preventive detention. It is, thus, for detaining authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of order of preventive detention. Perusal of grounds of detention, in the present case, would show that it is a verbatim copy of Dossier of Senior Superintendent of Police, submitted by him to the concerned Magistrate. This Court as regards the verbatim reproduction of the Dossier in grounds of detention, in the case of Naba Lone v. District Magistrate 1988 SLJ 300, while dealing with a case where a similar situation arose, has observed:

"The grounds of detention supplied to the detenue is a copy of the police dossier, which was placed before the District Magistrate for his subjective satisfaction in order to detain the detenue. This shows total non-application of mind on the part of the detaining authority. He has dittoed the Police direction without applying his mind to the facts of the case."