Peerzada Manzoor Ahmad vs UT Of J&K &Anr

Rajnesh Oswal, J

Aggrieved of the order of detention bearing No.DMB/PSA/44 of 2022 dated 16.09.2022 (for short “the impugned order”), the petitioner has assailed the same on the following grounds:

i) That there has been non-application of mind on the part of detaining authority while passing the impugned detention order and he has not been provided the relevant material relied upon by the detaining authority while passing the impugned order.

ii) That the grounds of detention are vague, devoid of necessary particulars which shows that the detaining authority has not applied his mind while issuing the order of detention.

iii) That the grounds of detention are replica of the contents of the police dossier which clearly demonstrates that respondent No. 2 has not applied his mind while passing the order of detention.

The counter affidavit stands filed by the respondents wherein it has been stated that the petitioner is a hardcore motivator and supporter of anti-national elements and for quite long had been delivering speeches which were against the law of land. The detenue by way of such speeches was instigating youths of the valley to join terror ranks. His aim is to spread the ideology of secessionism and fundamentalism and it was found that the detenue was a potential threat to the security of the State. It is further stated that while examining the dossier carefully and after perusing the material, the detaining authority was satisfied that the detenue’s activities were prejudicial to the security of the state and accordingly vide order impugned, his detention was ordered in order to prevent him from acting in any manner prejudicial to the security of the State. It is further averred that the detention of the detenue has been ordered strictly in accordance with the provisions of the J&K PSA, 1978 and the procedural safeguards under the Constitution have been strictly followed in the case.

Learned counsel appearing for the petitioner has reiterated the grounds as noted above by this Court. He further submitted that the petitioner has never made antinational speeches and he is under instructions from the petitioner that the petitioner is ready to furnish an undertaking that he would never make any antinational speech or speeches promoting hatred against the particular community/religion.

Mr. Sajad Ashraf, learned GA submits that after taking into consideration the illegal activities of the petitioner, he was ordered to be detained under the Act (supra). He has further submitted that the material relied upon by the detaining authority was duly provided to the petitioner against proper receipt and he was informed that he has a right to make a representation to the detaining authority as also to the Government against his detention.

Heard and perused the record.

From a perusal of the grounds of detention, which form part of the detention record produced by the learned counsel for the respondents, it transpires that no FIR has been shown to have been registered against the petitioner.

However, a document under the heading “Execution Report” annexed with the detention record, suggests that 12 leaves of material comprising of detention order (01 leaf), Notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (04 leaves), copies of FIR, statements of witnesses and other related relevant documents (03 leaves) have been furnished to the petitioner. Surprisingly, when no FIR is shown to have been registered against the petitioner, then how come 03 leaves of FIR etc. have been provided to the him. This exhibits total non-application of mind and overzealousness on the part of the detaining as well as the executing authority, which casts serious doubt about the authenticity of the said document. This contention gets further strengthened from the fact that as per the aforesaid “Execution Report” the petitioner has been furnished with dossier of detention consisting of 04 leaves whereas, as per the detention record, the police dossier comprises of only three leaves. These facts go on to show that the document “Execution Report” appears to be a manipulated document and, as such, the same cannot be relied upon. Thus, the contention of the petitioner that he has not been provided the relevant material appears to be well-founded. The aforesaid facts clearly show that there has been total non-application of mind on the part of the detaining authority which vitiates the impugned order of detention.

The other contention raised by the petitioner is that the grounds of detention are vague and this Court also finds that no specific details of the illegal activities of the petitioner considered to be prejudicial to the security of the State have been mentioned in the grounds of detention framed by the respondent No.2. Thus, on the grounds being vague and lacking in material particulars, the detenue could not have made an effective representation against his detention. Therefore, there has been violation of constitutional guarantee envisaged under Article 22(5)of the Constitution. The detention order, as such, is illegal and unsustainable. Reliance is placed upon the judgments of the Hon’ble Supreme Court of India in the cases of Jahangir khan Fazal Khan Pathan vs. Police Commissioner, Ahmadabad, (1989) 3 SCC 590 and Piyush Kantilal Mehta vs. The Commissioner of Police, Ahmedabad City and Ors. 1989 (1) Crimes 176 (SC).

Further this Court finds that the grounds of detention prepared by the respondent No.2 are the exact replica of the contents of the dossier submitted by the S.S.P, Budgam to the respondent No.2 except for the cosmetic changes. The detaining authority is required to apply its mind independently in respect of the material placed before it so as to derive subjective satisfaction that it has become necessary to detain the petitioner and the detaining authority cannot act as a mouthpiece of the sponsoring authority. 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 JaiSingh, 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 RamSingh, 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.”

Further, in ‘Rajesh Vashdev Adnani v. State of Maharashtra, (2005) 8 SCC 390’, the Hon’ble Apex Court quashed the order of detention, as the detention order was the verbatim reproduction of the proposal of the sponsoring authority. On this ground also, the order of detention is not sustainable and the same is required to be quashed.

In view of the above, the impugned detention order is not sustainable in the eyes of law and is, accordingly, quashed. The respondents are directed to release the petitioner from the preventive detention forthwith, provided he is not involved in any other case. In view of the fact that the petitioner has volunteered to furnish an undertaking that he would never make speeches which are antinational or promoting hatred against particular community and religion, the petitioner shall submit an undertaking to that effect within the period of 7 days of the release from his custody.

The detention record be returned to learned counsel for the respondents.