Farhad Ahmad Lone vs Ut Of J&K And Others

Rajnesh Oswal, J

The petitioner, through his father, has filed the present petition thereby assailing the order of detention bearing No.39/DMB/PSA/2022 dated 09.04.2022, passed by the respondent No.2, by virtue of which the petitioner has been ordered to be detained under the provisions of J&K Public Safety Act, 1978.

The order of detention has been challenged on the following grounds:-

a) That the detenu was implicated in a false FIR bearing No.94 of 2018. Despite always being available he was never arrested by the police until April, 2018 when he was called to Police Station Sopore, whereafter he was detained. There is an inordinate unexplained delay in passing the detention order, from the date of alleged activity and passing of impugned order of detention.

b) That there was no material before the respondent No.2 which prompted him to pass the impugned detention order. The detaining authority has derived its satisfaction for ordering the detention of the petitioner on the basis of grounds of detention and connected documents placed before him by Sr. Superintendent of Police and the grounds of detention are ditto copy of the police dossier;

c) That the detenue has not been furnished the material which formed the basis of the grounds of detention and the consequent order of detention, which has resulted in preventing the detenue from making an effective representation against the detention order;

d) That the grounds of detention are vague and suffer from non-application of mind, as the detention order is based on the police dossier and the detaining authority has not applied its mind before passing the detention order.

e) That the petitioner was already in custody in the instant FIR and could not have been bailed out as the petitioner had never applied for bail in the instant FIR, which was made the basis for passing the detention order.

The respondents have filed the reply, wherein it is stated that the petitioner came to be detained under the provisions of J&K Public Safety Act, 1978 validly and legally by virtue of impugned detention order and all the statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority, keeping in mind that the very object of law of preventive detention being not punitive but only preventive and the detaining authority has passed the impugned order of detention after deriving subjective satisfaction in the matter. It is further stated that the grounds of detention, order of detention as well as entire material relied upon by the detaining authority, came to be furnished to the detenue well within the statutory period. It is also stated that the contents of the detention order and the grounds of detention were read over and explained to the detenue in the language which he fully understood and in lieu whereof the detenue has put his signatures on the execution order/report dated 30.04.2022. The petitioner was also informed about his right of making representation to the detaining authority or to the Government against his detention. The respondents submitted that they have complied with all statutory, constitutional provisions and followed all requisite formalities and have not violated any of them. After obtaining the opinion of the Advisory Board, the Government after examining the detention order and the material placed on record, approved the aforesaid detention order vide order No. Home/PB-V/1266 of 2022 dated 20.06.2022.

Learned counsel for the petitioner contended that there is unexplained, inordinate delay in passing the detention order from the date of last activity, as the last activity, in which the petitioner allegedly indulged, took place in the year 2018 and after a period of more than three years, the order of detention has been passed on 09.04.2022. He further submitted that the respondent No.2 has not furnished any reason for issuing the detention order when the petitioner was already in the custody of the respondents.

Mr. Jahangir Ahmad Dar, learned GA, submitted that the order of detention has been passed by the respondent No.2 in accordance with law and all the statutory requirements and constitutional safeguards have been complied with while issuing and executing the detention order.

Heard learned counsel for the parties and perused the record.

The perusal of the record reveals that the petitioner was already in custody when the detention order was passed. From the ground of detention, nothing is forthcoming as to what compelled the respondent No.2 to pass the detention order when the petitioner was already in custody. There is no reference either in the dossier or in the grounds of detention that the petitioner had preferred any bail application before the trial court. The absence of proof of any such application in grounds of detention reveal that there was virtually no subjective satisfaction on the part of the detaining authority that the detention of the petitioner is necessary as there is likelihood of his being enlarged on bail. The impugned detention order, as such, is not sustainable on this ground. Reliance is placed upon the decision of Apex Court in "Rekha vs State of T.N" reported in ( 2011) 5 SCC 244, in which it has been held:-

"In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."

Further, a comparative perusal of the grounds of detention and the dossier furnished by the sponsoring authority would reveal that the grounds of detention are verbatim reproduction of the contents of the dossier except the cosmetic changes. The detaining authority was required to apply its mind independently with regard to the material placed before it so as to derive satisfaction that it has become necessary to detain the petitioner, but the same has not been done in the instant case. This too renders the detention order illegal. 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 Jai 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 11 WP(Crl) No. 64/2021 subject is" into "you Jai Singh, 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 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."

Accordingly, the instant petition is allowed and the order of detention bearing No.39/DMB/PSA/2022 dated 09.04.2022 is hereby quashed. The respondents are directed to release the petitioner, namely, Farhad Ahmad Lone S/o Gh.Hassan Lone R/o Zangam Pattan District Baramulla, from preventive custody forthwith, if not required in any other case. The record, as produced, be returned to the learned counsel for the respondents.