Mohd. Asgar vs Union Territory Of J&K And Others

Puneet Gupta, J

The petitioner Mohd. Asgar has called in question order of detention bearing No. 05 of 2020 dated 22.02.2020, passed by the respondent No.2-District Magistrate, Jammu, on the ground that the details of FIRs mentioned in the order impugned do not speak of the status of the petitioner in those FIRs, the relevant material has not been supplied nor the contents of the grounds of detention have been explained to the petitioner in the language he understands, the non-application of mind is exhibited in the detention order and that the case of the petitioner was not referred to the Advisory Board and finally the order is not confirmed by the Authorities within the statutory period of the Jammu and Kashmir Public Safety Act.

The counter affidavits have been filed on behalf of respondent No.2 and respondent No.3 wherein the contentions raised in the petition have been negated by stating that the order of detention is passed keeping in view the facts of the case, the petitioner has been found to be notorious, hardcore, habitual criminal whose activities are highly prejudicial to the maintenance of public order. The grounds of detention have been explained to the petitioner and the material stands supplied to him. The petitioner has not chosen to file representation before the Advisory Board and the Government has approved the detention order vide order dated 28.02.2020 and finally that the petitioner has no case in the present petition. The prayer is for dismissal of the petition.

The learned counsels have argued the matter in line with respective pleadings.

At the outset, it may be mentioned that the order impugned dated 22.02.2020, passed by the respondent No.2, has been executed on 22.02.2020 itself. The execution report mentions of the grounds of detention having been read over in English and explained to the detenue in Dogri language, the copy of detention, detention warrant along with other materials has been handed over to the detenue-petitioner against the proper receipt. The affidavit of Hazara Singh-Sub-Inspector is also annexed with the reply with regard to the execution of the detention order. The signatures of the petitioner on the execution report are available and have not been disputed. In view of these facts, the Court is satisfied that the grounds of detention along with the relevant material have been supplied to the petitioner and he has also been explained the grounds of detention in the language which he understands. No fault can be found as far as the contention is raised on above aspects by the petitioner in the writ petition.

The argument of the learned counsel for the petitioner that the order of detention has not been confirmed by the government within the statutory period stands negated by the Government Order No. Home/PB-V/582 of 2020 dated 28.02.2020 which is within the statutory period as provided under the Act. The counter affidavits filed on behalf of the respondents are silent of any order passed by the Advisory Board vis-à-vis the detention order passed by the respondent No.2.

The purpose of the preventive detention is to prevent the person from committing such acts in future which may be prejudicial to the maintenance of public order. The sense of security in the society is sought to be instilled through preventive detention. The detention order cannot be passed in a casual manner by the concerned authority thereby depriving the person of his liberty.

The main contention which is invariably raised in such like cases pertains to non-application of mind by the Authority while passing the detention order and the same has been raised in the present case also. The respondents deny this assertion of the petitioner.

It needs no re-iteration that though the satisfaction of the detaining authority is subjective one while passing the detention order yet the same is not immune from judicial scrutiny. The authority cannot be granted license to pass the order in reckless manner and thus the judicial check and interference wherever required.

In Union of India v. Dimple Happy Dhakad (Appeal no. 1064/2019 decided on 18.7.2019) the Hon'ble Supreme Court has held that the subjective satisfaction of the detaining authority is not immune from judicial reviewability and the court on facts upheld the detention order of the respondent in the case.

The counsel for the petitioner has argued that the grounds of detention which are part and parcel of the detention order do not indicate the status of the petitioner in those FIRs. The learned counsel for the respondents, on the other hand, has argued that the details of the FIRs are adequately mentioned in the FIRs and the detention order, therefore, cannot be said to be deficient on that ground.

The detention order refers to five FIRs and one application under Section 110 Cr.P.C which have been lodged against the petitioner. The contention raised in the petition is that in FIR No. 259/2002 the petitioner stands acquitted, in FIR No. 105/2012 the petitioner has been deleted from the array of accused, in FIR No. 168/2019 name of the petitioner is not reflected in the said FIR and in application under Section 110 Cr.P.C nothing is found against the petitioner. This assertion of the petitioner has not been denied in the counter affidavits filed in the petition which means that the stand taken by the petitioner remains unrebutted. Admittedly, the detention order though mentions of the cases filed against the petitioner they do not speak of the fact that the petitioner stands acquitted or not found involved in some of them. This is evidently case of non-application of mind on behalf of the detaining authority. The dossier which in fact forms basis of the detention order also fails to reflect the same. It only shows callous attitude of the respondent while passing the detention order against the petitioner. The respondent no.2 is not aware of this fact and that is why no mention of the same in the impugned order. The order appears to have been passed hurriedly without verifying the facts of the case.

In (2011) 5 SCC 244 (REKHA V. STATE OF TAMIL NADU THROUGH SECRETARY TO GOVERNMENT AND ANR) the Apex Court quashed the detention order on the ground that the detention order failed to say of the details of the similar cases in which the bail had been granted by the courts.

Another important factor which bears non-application of mind of the detaining authority is the fact that the detention order is without any doubt a copy of the dossier submitted by the Senior Superintendent of Police to the respondent No.2. Except for mention in the detention order that the order against the petitioner is passed in exercise of powers conferred under Section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978, the order of detention is verbatim of the dossier from the respondent No.3. The court does not find any material other than the dossier which forms basis of impugned order of detention.

The respondent No.2 was required to take independent call of passing the detention order and not to just rely upon the dossier sent by the respondent No.3.

In Rajesh Vashdev Advani v. St of Maharashtra (2005) 8 SCC 4388 390 the Hon'ble Apex Court noted the non-application of mind on the part of the District Magistrate as the wording in the dossier was almost replicated in the detention order. The detention was quashed in that case.

In Jai Singh v. State of J&K (1985) 1 SCC 561, the detention order was quashed on similar grounds by the Hon'ble Supreme Court.

The learned counsel for the respondents has banked upon the decision in Mian Abdul Qayoom ors. v. Union Territory of J&K & (LPA NO. 28/2020 decided on 28.5.2020). The facts of that case are distinguishable from the case in hand. The judgment is not of any help to the respondents in the present case.

In view of the discussion made above, the Court is constraint to hold that the order of detention passed by the detaining authority is without application of mind. The detention order is required to be quashed on this ground alone.

Accordingly, the order of detention, impugned in the petition, is quashed. The petitioner will be released forthwith unless required in some other case. The main petition is disposed of along with connected application(s).