Jammu & Kashmir High Court - Srinagar Bench

Shri Peerzada Manzoor Ahmad vs Ut Of J&K &Anr on 27 March, 2024

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                  LADAKHAT SRINAGAR
                                                   Reserved on: 04.03.2024
                                                   Pronounced on:27.03.2024

                            WP(Crl) No.657/2022

SHRI PEERZADA MANZOOR AHMAD                        ...PETITIONER(S)

       Through: - Mr. G. N. Shaheen, Advocate.

Vs.

UT OF J&K &ANR                                 ...RESPONDENT(S)
       Through: -     Mr. Sajad Ashraf, GA.

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

                                   JUDGMENT

1. Aggrieved of the order of detention bearing

No.DMB/PSA/44 of 2022 dated 16.09.2022 (for short "the

impugned order"), the petitioner has assailed the same on

the following grounds:

i) That there has been non-application of mind on the part of detaining authority while passing the impugned detention order and he has not been provided the relevant material relied upon by the detaining authority while passing the impugned order.

ii) That the grounds of detention are vague, devoid of necessary particulars which shows that the detaining authority has not applied his mind while issuing the order of detention.

iii) That the grounds of detention are replica of the contents of the police dossier which clearly demonstrates that respondent No. 2 has not applied his mind while passing the order of detention.

2. The counter affidavit stands filed by the respondents

wherein it has been stated that the petitioner is a

hardcore motivator and supporter of anti-national

elements and for quite long had been delivering speeches

which were against the law of land. The detenue by way of

such speeches was instigating youths of the valley to join

terror ranks. His aim is to spread the ideology of

secessionism and fundamentalism and it was found that

the detenue was a potential threat to the security of the

State. It is further stated that while examining the dossier

carefully and after perusing the material, the detaining

authority was satisfied that the detenue's activities were

prejudicial to the security of the state and accordingly vide

order impugned, his detention was ordered in order to

prevent him from acting in any manner prejudicial to the

security of the State. It is further averred that the

detention of the detenue has been ordered strictly in

accordance with the provisions of the J&K PSA, 1978 and

the procedural safeguards under the Constitution have

been strictly followed in the case.

3. Learned counsel appearing for the petitioner has

reiterated the grounds as noted above by this Court. He

further submitted that the petitioner has never made

antinational speeches and he is under instructions from

the petitioner that the petitioner is ready to furnish an

undertaking that he would never make any antinational

speech or speeches promoting hatred against the

particular community/religion.

4. Mr. Sajad Ashraf, learned GA submits that after

taking into consideration the illegal activities of the

petitioner, he was ordered to be detained under the Act

(supra). He has further submitted that the material relied

upon by the detaining authority was duly provided to the

petitioner against proper receipt and he was informed that

he has a right to make a representation to the detaining

authority as also to the Government against his detention.

5. Heard and perused the record.

6. From a perusal of the grounds of detention, which

form part of the detention record produced by the learned

counsel for the respondents, it transpires that no FIR has

been shown to have been registered against the petitioner.

However, a document under the heading "Execution

Report" annexed with the detention record, suggests that

12 leaves of material comprising of detention order (01

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

(03 leaves), dossier of detention (04 leaves), copies of FIR,

statements of witnesses and other related relevant

documents (03 leaves) have been furnished to the

petitioner. Surprisingly, when no FIR is shown to have

been registered against the petitioner, then how come 03

leaves of FIR etc. have been provided to the him. This

exhibits total non-application of mind and

overzealousness on the part of the detaining as well as the

executing authority, which casts serious doubt about the

authenticity of the said document. This contention gets

further strengthened from the fact that as per the

aforesaid "Execution Report" the petitioner has been

furnished with dossier of detention consisting of 04 leaves

whereas, as per the detention record, the police dossier

comprises of only three leaves. These facts go on to show

that the document "Execution Report" appears to be a

manipulated document and, as such, the same cannot be

relied upon. Thus, the contention of the petitioner that he

has not been provided the relevant material appears to be

well-founded. The aforesaid facts clearly show that there

has been total non-application of mind on the part of the

detaining authority which vitiates the impugned order of

detention.

7. The other contention raised by the petitioner is that

the grounds of detention are vague and this Court also

finds that no specific details of the illegal activities of the

petitioner considered to be prejudicial to the security of

the State have been mentioned in the grounds of detention

framed by the respondent No.2. Thus, on the grounds

being vague and lacking in material particulars, the

detenue could not have made an effective representation

against his detention. Therefore, there has been violation

of constitutional guarantee envisaged under Article 22(5)of

the Constitution. The detention order, as such, is illegal

and unsustainable. Reliance is placed upon the judgments

of the Hon'ble Supreme Court of India in the cases of

Jahangir khan Fazal Khan Pathan vs. Police

Commissioner, Ahmadabad, (1989) 3 SCC 590 and Piyush

Kantilal Mehta vs. The Commissioner of Police,

Ahmedabad City and Ors. 1989 (1) Crimes 176 (SC).

8. Further this Court finds that the grounds of

detention prepared by the respondent No.2 are the exact

replica of the contents of the dossier submitted by the

S.S.P, Budgam to the respondent No.2 except for the

cosmetic changes. The detaining authority is required to

apply its mind independently in respect of the material

placed before it so as to derive subjective satisfaction that

it has become necessary to detain the petitioner and the

detaining authority cannot act as a mouthpiece of the

sponsoring authority. 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 JaiSingh, 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 subject is" into "you Jai Singh, s/o RamSingh, 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. Further, in 'Rajesh Vashdev Adnani v. State of

Maharashtra, (2005) 8 SCC 390', the Hon'ble Apex Court

quashed the order of detention, as the detention order was

the verbatim reproduction of the proposal of the

sponsoring authority. On this ground also, the order of

detention is not sustainable and the same is required to

be quashed.

10. In view of the above, the impugned detention order is

not sustainable in the eyes of law and is, accordingly,

quashed. The respondents are directed to release the

petitioner from the preventive detention forthwith,

provided he is not involved in any other case. In view of