Aqib Maqbool Lone vs Union Territory Of Jammu And Kashmir And Others

Sanjay Dhar, J

The petitioner has challenged detention order bearing No. 27/DMP/PSA/2022 dated 12.04.2022 passed by District Magistrate, Pulwama (hereinafter to be referred as the Detaining Authority), whereby the petitioner-Aqib Maqbool Lone S/o. Mohamad Maqbool Lone R/o. Retnipora, Tehsil Kakapora District Pulwama, has been taken into preventive custody in order to prevent him from acting in any manner prejudicial to the security of the State.

The petitioner has challenged the impugned order of detention on the grounds that the same has been passed by the Detaining Authority in a mechanical manner without application of mind. It has been further contended that all the constitutional and statutory safeguards have not been adhered to by the respondents at the time of passing of the impugned order of detention and the material, on the basis of which, the grounds of detention have been formulated, has not been supplied to him. It has also been contended that the allegations made in the grounds of detention are vague and bereft of specific details, on the basis of which, it was not possible for the petitioner to make effective representation against the impugned order of detention. It has also been contended that the petitioner had made a representation to the respondents against the impugned order of detention, but the same was not considered by the respondents.

The respondents have contested the writ petition by filing counter affidavit of respondent No. 2-the Detaining Authority. In the counter affidavit, respondent No. 2 has submitted that the grounds of detention would clearly indicate that the petitioner has indulged in subversive activities which have prompted the Detaining Authority to pass the impugned order of detention. It has been further contended that all the constitutional and procedural safeguards have been adhered to by the respondents at the time of passing of the impugned order of detention. It has been also submitted that whole of the material forming basis of the grounds of detention has been furnished to the petitioner and the same has been explained to him in the language he understands. It has been further submitted that father of the petitioner had made a representation against the impugned order of detention and the same was considered and rejected by the respondents on 19.05.2022. The rejection of the representation was communicated to the petitioner through Superintendent Central Jail Kotbhalwal, Jammu. The respondents have produced the detention record to lend support to their contentions.

I have heard learned counsel for the parties and perused the material on record including the record of detention.

The main ground that has been urged by the petitioner is that there has been non application of mind on the part of the Detaining Authority, while passing the impugned order of detention. It has been submitted that the petitioner was admitted to bail in FIR No. 11/2020 of Police Station, Kakapora on 01.09.2020, mention whereof is made in the grounds of detention, however, in the grounds of detention, the Detaining Authority has not made any mention about the grant of bail to the petitioner, which reflects non application of mind on his part.

If we have a look at the documents placed on record by the petitioner, it is revealed that the petitioner has been granted bail in FIR No. 11/2020 of Police Station, Kakapora by Special Judge, NIA Court, Srinagar on 01.09.2020. A copy of the docket issued by the said court has been placed on record. In the Police dossier, which is available in the detention record, it has been specifically recorded that the petitioner has succeeded in obtaining bail order from the court and, as such, there are compelling reasons for his detention under the provisions of the J&K Public Safety Act. However, the District Magistrate i.e. the Detaining Authority while formulating the grounds of detention, has recorded that presently the petitioner is under custody on remand and that there is every likelihood of his getting bailed out and remaining at large, which would be detrimental to the security of the State. This means that the Detaining Authority has not carefully gone through the dossier submitted before it by the sponsoring agency and passed the impugned order of detention in a mechanical manner. Thus, the functioning of the Detaining Authority smacks of total non application of mind, which renders his subjective satisfaction a casualty. On this ground alone, the impugned order of detention is liable to be quashed.

For what has been discussed hereinbefore, the petition is allowed and the impugned order of detention bearing No. 27/DMP/PSA/2022, dated 12.04.2022 passed by District Magistrate, Pulwama, is quashed. The petitioner is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.

The record, as produced, be returned to the learned counsel for the respondents.