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Judgment
1) By the medium of this petition, veracity and validity of the order of detention bearing No.28/DMP/PSA/20 dated 25.09.2020, issued by District
Magistrate, Pulwama (“the Detaining Authorityâ€), has been assailed. In terms of the impugned order, Shri Nisar Ahmad Khanday son of Late Gh.
Hassan Khanday resident of Chersoo Tehsil Awantipora District Pulwama, has been placed under preventive detention and lodged in Central Jail,
Kotebhalwal, Jammu.
2) Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has
been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been
urged that the allegations made against the detenue in the grounds of detention are vague. Petitioner has gone to contend that he has not been
informed as to before which authority he had to make a representation.
3) The writ petition is opposed by the respondents who have filed reply affidavit on behalf of the detaining authority. The factual submissions made by
the petitioner have not been refuted in the reply affidavit by the respondents. The respondents have relied upon the judgment of the Supreme Court in
the case of Hardhan Saha v. State of W.B (1975) 3 SCC 198, and submit that the detention order is based on the subjective satisfaction of the
detaining authority and the same cannot be gone into by this Court in exercise of its extraordinary writ jurisdiction. It is contended that the detenue has
been detained only after following due procedure; that there has been proper application of mind on the part of the Detaining Authority while passing
the impugned order 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.
4) I have heard learned counsel for parties and I have also gone through detention record.
5) The main ground urged by the learned counsel for the petitioner is that the constitutional and statutory procedural safeguards have not been
complied with in the case of the petitioner, inasmuch as whole of the material forming basis of the grounds of detention has not been furnished to him.
6) A perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the
petitioner on 08.10.2019. Report of Executing Officer in this regard forms part of the detention record, a perusal thereof reveals that it bears the
signature of petitioner and according to it, copy of detention warrant (01 leaf), grounds of detention (02 leaves) and notice of detention (01 leaf), in
total 04 leaves, have been supplied to him.
7) It is clear from the execution report, which forms part of the detention record, that copies of detention order and the dossier have not at all been
supplied to the detenue. The grounds of detention bears reference to proceedings under Section 107 of Cr. P. C against the detenue but the copies of
relevant documents pertaining to these proceedings have also not been provided to the detenue, as is clear from the report of execution.
8) Obviously the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a
result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record.
9) Furnishing of material including statement of witnesses is a necessary requirement for enabling the detenue to make an effective representation
against the order of detention. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam Mohd. Bham v. State of
Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors (AIR 2009 SC 2184) and Ibrahim Ahmad
Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and othersâ€, (1982) 3 SCC 440.
10) Another ground that has been argued during the course of arguments is that there has been non-application of mind on the part of the Detaining
Authority as the grounds of detention are more or less a Xerox copy of the dossier.
11) From a perusal of the record, the ground projected appears to have substance. The grounds of detention, in this case are, in fact, a replica of
dossier with interplay of some words here and there. This exhibits non-application of mind and in the process deriving of subjective satisfaction has
become a 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 dossier. Here it will be apt to notice the observations of the Supreme Court in the case of “Jai Singh and ors vs. State of J&Kâ€
(AIR 1985 SC 764), which are reproduced hereunder:
“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 …….â€
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, Tehsil Reasiâ€. 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 proof of non-application of mind. The liberty of a subject is a serious matter and is not to
be trifled with in this casual, indifferent and routine manner.â€
12) From a perusal of the aforesaid observations of the Supreme Court, it is clear that the ground 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. 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 alone.
13) For the afore-stated reasons, the petition is allowed and the order of detention bearing No.28/DMP/PSA/20 dated 25.09.2020, issued by District
Magistrate, Pulwama, is quashed. The detenue is directed to be released from the preventive custody forthwith, unless, of course he is not required in
connection with any other case.