Aqib Zahoor Ganie vs UT Of Jammu & Kashmir And Others

M.A.Chowdhary, J

District Magistrate, Budgam (hereinafter called “Detaining Authority”) in exercise of powers conferred on him under Section 8 (1) (a) of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. DMB/PSA/04 of 2022 dated 15.04.2022 (for short impugned order), in terms whereof petitioner Aqib Zahoor Ganie, S/O Zahoor Ahmad Ganie R/O Kulbugh, Budgam (for short “detenue”) has been detained to prevent him from acting in a manner prejudicial to the security of the State and ordered to be lodged in Central Jail, Jammu.

The impugned detention order has been challenged through the medium of the instant petition, being in breach of the provisions of Article 22(5) of the Constitution of India read with Section 13 of the J&K Public Safety Act, 1978.

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 submitted by the Senior Superintendent of Police concerned. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been also urged that the allegations made against the detenue in the grounds of detention are vague and that the translated version of the documents/grounds of detention has not been provided to the detenue. It has also been contended that the petitioner has not been informed before whom he had to make a representation against his detention. Further it is pleaded that there is no proximate and live link between the alleged activities of the detenue mentioned in the grounds of detention and passing of the detention order as such the grounds of detention are totally vague, stale and based on surmises and conjecture, because in the grounds of detention the allegations against the detenue pertain to the alleged activities way back to the year 2020 and there is no fresh allegation against the detenue which would warrant the detaining authority to detain the detenue under the provisions of Public Safety Act. On these grounds the detention order is sought to be set aside.

The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.

Heard learned counsel for both the sides at length, perused the record and considered.

Learned counsel for the petitioner, while seeking quashment of the impugned order projected various grounds but the main ground that has prevailed during his arguments is that the grounds of detention are replica of dossier which reflects non-application of mind on the part of detaining authority and that there is no proximate and live link between the alleged activities of the detenue to be prejudicial to the maintenance of Security of the State as such the grounds of detention are totally vague and stale.

Learned counsel for the respondents, ex adverso, argued that the detention of the detenu was required to prevent him from acting in a manner prejudicial to the security of the State; that it is settled law that the preventive detention can be ordered by the detaining authority in case a satisfaction is drawn with regard to his activities prejudicial to the Security of the State. He has further argued that the petitioner had been provided entire record which was based to order his detention and further submitted that the petitioner was informed about his legal right of filing representation against his detention to the detaining authority as well as to the Govt.

While going through the detention record, I also thought it proper to go through dossier prepared by police, which forms part of detention record. While comparing grounds of detention with dossier, it comes to fore that grounds of detention are ditto copy of dossier. It may be made clear here that detaining authority may get inputs from different agencies, including Senior Superintendent of Police of the concerned District, but the 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 with just some cosmetic changes here and there, 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 the grounds of detention, in 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.”

This Court again in the case of Noor-ud-Din Shah v. State of J&K & Ors (1989 SLJ 1), quashed the detention order, which was only a reproduction of the Dossier supplied to the detaining authority on the ground that it amounted to non-application of mind holding as under:

“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 levelled 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 detenue, 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 indifferent to the import of preventive detention as or detailed 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.”

A similar situation arose in the case of Jai Singh and ors. v. State of Jammu & Kashmir AIR 1985 SC 764, before the Supreme Court. The Court quashed the detention as it found that there cannot be a greater proof of non-application of mind and that the liberty of a subject being a serious matter, it is not to be tramppeled with in this casual, indifferent and routine manner. The Court observed:

“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 Jail 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 subject is” into “you Jai singh, S/o Ram Singh, resident of village Bharakh, 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 Jail Singh in the dossier is changed into “you” in the grounds of detention. We are afraid it is difficult of 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.”

The record further reveal that the incident/FIR referred in the grounds of detention pertain to the year 2020 and that is near about 2 years prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus, it is clear that the order of detention has been based on past and stale incident(s).

The Supreme Court in the case of Sama Aruna v. State of Telengana & Anr. ( 2018)12 SCC 150, while holding that the incidents which are said to have taken place long back cannot form basis for being satisfied that the detenue is going to engage in similar activities, observed as under:

“17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents must be regarded as an order of punishment for a crime passed without a trial, though purporting to be an order of preventive detention.

The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him for doing it.”

From the aforesaid enunciation of the law on the subject, it is clear that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the maintenance of Security of the State. In the instant case, the said link is completely missing as the time between the order of detention and the incident(s) referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained on this ground also.

For the foregoing reasons and the law stated hereinabove, this petition is allowed and detention Order No.DMB/PSA/04/2022 dated 15.04.2022, passed by District Magistrate, Budgam is quashed. Respondents, including Jail Superintendent concerned, are directed to release the detenu forthwith, provided he is not required in any other case(s).

Xerox copy of the Detention record, as produced, be returned to the learned GA.

Disposed of accordingly.