Adil Ahmad Dar vs Union Territory Of J&K & Ors

Sanjay Dhar, J

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.