Farhad Ahmad Lone vs Ut Of J&K And Others
2023 Latest Caselaw 651 j&K/2

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT SRINAGAR


                                            Reserved on: 15.05.2023
                                            Pronounced on: 26.05.2023

                  WP(Crl) No.243/2022

FARHAD AHMAD LONE

                                                        ..Petitioner(s)
                         Through: -Mr.Shah Ashiq Hussain, Advocate.
                 Vs.

UT OF J&K AND OTHERS


                                                     ...Respondent(s)
                         Through: -Mr.Jahangir Ahmad Dar, GA

CORAM:
    HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                             JUDGMENT

1. The petitioner, through his father, has filed the present

petition thereby assailing the order of detention bearing

No.39/DMB/PSA/2022 dated 09.04.2022, passed by the

respondent No.2, by virtue of which the petitioner has

been ordered to be detained under the provisions of J&K

Public Safety Act, 1978.

2. The order of detention has been challenged on the

following grounds:-

a) That the detenu was implicated in a false FIR bearing

No.94 of 2018. Despite always being available he was

never arrested by the police until April, 2018 when he

was called to Police Station Sopore, whereafter he was

detained. There is an inordinate unexplained delay in

passing the detention order, from the date of alleged

activity and passing of impugned order of detention.

b) That there was no material before the respondent No.2

which prompted him to pass the impugned detention

order. The detaining authority has derived its

satisfaction for ordering the detention of the petitioner

on the basis of grounds of detention and connected

documents placed before him by Sr. Superintendent of

Police and the grounds of detention are ditto copy of

the police dossier;

c) That the detenue has not been furnished the material

which formed the basis of the grounds of detention and

the consequent order of detention, which has resulted

in preventing the detenue from making an effective

representation against the detention order;

d) That the grounds of detention are vague and suffer

from non-application of mind, as the detention order is

based on the police dossier and the detaining authority

has not applied its mind before passing the detention

order.

e) That the petitioner was already in custody in the instant

FIR and could not have been bailed out as the

petitioner had never applied for bail in the instant FIR,

which was made the basis for passing the detention

order.

3. The respondents have filed the reply, wherein it is stated

that the petitioner came to be detained under the

provisions of J&K Public Safety Act, 1978 validly and

legally by virtue of impugned detention order and all the

statutory requirements and constitutional guarantees have

been fulfilled and complied with by the detaining

authority, keeping in mind that the very object of law of

preventive detention being not punitive but only

preventive and the detaining authority has passed the

impugned order of detention after deriving subjective

satisfaction in the matter. It is further stated that the

grounds of detention, order of detention as well as entire

material relied upon by the detaining authority, came to be

furnished to the detenue well within the statutory period. It

is also stated that the contents of the detention order and

the grounds of detention were read over and explained to

the detenue in the language which he fully understood and

in lieu whereof the detenue has put his signatures on the

execution order/report dated 30.04.2022. The petitioner

was also informed about his right of making

representation to the detaining authority or to the

Government against his detention. The respondents

submitted that they have complied with all statutory,

constitutional provisions and followed all requisite

formalities and have not violated any of them. After

obtaining the opinion of the Advisory Board, the

Government after examining the detention order and the

material placed on record, approved the aforesaid

detention order vide order No. Home/PB-V/1266 of 2022

dated 20.06.2022.

4. Learned counsel for the petitioner contended that there is

unexplained, inordinate delay in passing the detention

order from the date of last activity, as the last activity, in

which the petitioner allegedly indulged, took place in the

year 2018 and after a period of more than three years, the

order of detention has been passed on 09.04.2022. He

further submitted that the respondent No.2 has not

furnished any reason for issuing the detention order when

the petitioner was already in the custody of the

respondents.

5. Mr. Jahangir Ahmad Dar, learned GA, submitted that the

order of detention has been passed by the respondent No.2

in accordance with law and all the statutory requirements

and constitutional safeguards have been complied with

while issuing and executing the detention order.

6. Heard learned counsel for the parties and perused the

record.

7. The perusal of the record reveals that the petitioner was

already in custody when the detention order was passed.

From the ground of detention, nothing is forthcoming as to

what compelled the respondent No.2 to pass the detention

order when the petitioner was already in custody. There is

no reference either in the dossier or in the grounds of

detention that the petitioner had preferred any bail

application before the trial court. The absence of proof of

any such application in grounds of detention reveal that

there was virtually no subjective satisfaction on the part of

the detaining authority that the detention of the petitioner

is necessary as there is likelihood of his being enlarged on

bail. The impugned detention order, as such, is not

sustainable on this ground. Reliance is placed upon the

decision of Apex Court in "Rekha vs State of T.N"

reported in ( 2011) 5 SCC 244, in which it has been

held:-

"In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is

pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."

8. Further, a comparative perusal of the grounds of detention

and the dossier furnished by the sponsoring authority

would reveal that the grounds of detention are verbatim

reproduction of the contents of the dossier except the

cosmetic changes. The detaining authority was required to

apply its mind independently with regard to the material

placed before it so as to derive satisfaction that it has

become necessary to detain the petitioner, but the same

has not been done in the instant case. This too renders the

detention order illegal. Reliance is placed upon the

decision of Apex Court in case titled "Jai Singh v. State

of J & K", reported in (1985) 1 SCC 561 and the relevant

portion 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 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 the address 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 11 WP(Crl) No. 64/2021 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 greater proof of non- application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."

9. Accordingly, the instant petition is allowed and the order

of detention bearing No.39/DMB/PSA/2022 dated

09.04.2022 is hereby quashed. The respondents are

directed to release the petitioner, namely, Farhad Ahmad

Lone S/o Gh.Hassan Lone R/o Zangam Pattan District

Baramulla, from preventive custody forthwith, if not

required in any other case. The record, as produced, be

returned to the learned counsel for the respondents.

(RAJNESH OSWAL) JUDGE

SRINAGAR 26.05.2023 Sarveeda Nissar

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