Prem Singh vs UT Of Jammu And Kashmir And Others

Sanjay Dhar, J

1 The petitioner (hereinafter referred to as the ‘detenu’) has challenged order No.01-PSA of 2022 dated 12.05.2022 passed by the District Magistrate, Reasi (‘Detaining Authority’) whereby he has been subjected to preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

It is contended in the petition that the impugned order of detention has been passed on the bases of false and frivolous FIRs lodged against him. It is further contended that the impugned order of detention has been passed without application of mind and that the grounds of detention are merely a reproduction of the police dossier. It is further contended that the petitioner has been released on bail in all the cases, but this fact does not find mention in the impugned order of detention which shows non-application of mind on the part of the Detaining Authority. It is also contended that the constitutional and statutory safeguards have been observed in breach by the respondents in the instant case and the detenu has not been furnished whole of the material on which reliance has been placed by the Detaining Authority. It is also contended that the grounds of detention are vague on the basis of which it was impossible for the petitioner to make an effective representation.

3 The respondents have resisted the petition by filing a counter affidavit thereto. In their counter affidavit, the respondents have submitted that the detenu is a habitual offender against whom a large number of cases have been registered and his activities are highly prejudicial to the maintenance of peace and public order. It is further submitted that the detenu is repeatedly involved in the activities which are prejudicial to the security of public order and he has a network of criminals to carry out nefarious activities. It has been further contended that all the constitutional and statutory safeguards have been adhered to by the respondents while passing the impugned order of detention and that the detenu has been furnished whole of the material relied upon by the Detaining Authority. It is also contended that the impugned order of detention has been passed by the Detaining Authority after drawing subjective satisfaction on the basis of the material brought before it. To support their contentions, the respondents have produced the detention record.

4 I have heard learned counsel for the parties and perused the material on record including the detention record.

5 Learned counsel for the detenu, while seeking quashment of the impugned order, projected various grounds, but his main thrust during the course of arguments was on the following grounds:

(i) That there has been non-application of mind on the part of the Detaining Authority while passing the impugned order of detention, inasmuch as, it was not alive to the fact that the detenu had been enlarged on bail in all the cases registered against him as the said fact is not mentioned in the grounds of detention;

(ii). That the grounds of detention are vague on the basis of which no prudent person could make an effective representation against the order of detention.

6 The first ground that has been urged by learned counsel for the detenu is that the impugned order of detention suffers from non-application of mind on the part of the Detaining Authority, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner has been admitted to bail in all the FIRs, mention whereof, is made in the grounds of detention. To support the assertion that the petitioner has been admitted to bail, he has placed on record copies of orders whereby he has been enlarged on bail in the FIRs mention whereof is made in the grounds of detention.

7 As per the grounds of detention, the petitioner is involved in FIR No. 55/2019, FIR No. 36/2020, FIR No. 47/2020, FIR No. 35/2021 and FIR No. 36/2021. In all these FIRs, the detenu, it appears, has been granted bail. In the grounds of detention, there is no mention of grant of bail in favour of the detenu. In the impugned order of detention, it is mentioned that the detenu is reportedly stated to have been arrested in the aforesaid FIRs, but when we go through the detention record produced by the respondents, it is revealed that as per Daily Diary No. 035 dated 13.05.2022, the detention warrant has been executed by arresting the detenu from Reasi town, which means that, at the time of execution of detention warrant, he was not in custody. This strengthens the contention of the detenu that he was on bail in the aforesaid FIRs at the relevant time, but, the said fact does not find mention in the grounds of detention. On the contrary, the Detaining Authority has, in the impugned order of detention, observed that the detenu is arrested in the aforesaid FIRs. This clearly exhibits total non-application of mind on the part of the Detaining Authority.

8 It appears that the detaining authority has not meticulously examined the record while passing the order of detention which renders the same unsustainable in law. In this regard, I am supported by the judgment of the Supreme Court in the case of Anant Sakharam Raut v. State of Maharashtra, 1987 SC 137.

9 The second ground that has been urged by learned counsel for the detenu is that the grounds of detention are vague lacking in material particulars which has made impossible for the detenu to make an effective representation against the impugned order of detention.

10 If we go to the grounds of detention, it is mentioned that the detenu is a notorious criminal having formed a gang of criminals. It is also mentioned in the grounds of detention that the detenu has close link/association with other criminals. It is further stated in the grounds of detention that if anyone raises voice against the detenu, he gets false and frivolous cases registered against such persons by using his close aids. In the grounds of detention, it is not mentioned as to who are the members of the gang of criminals which has been allegedly formed by the detenu. It is not discernible from the grounds of detention as to with whom the detenu is having close link/association. Neither, there is any mention of the particulars relating to the persons against whom false and frivolous cases have been registered by the detenu, nor the particulars of these false cases are given in the grounds of detention. Thus, the allegations made in the grounds of detention are vague and lacking in material particulars. On the basis of these vague allegations, the detenu could not have made an effective representation against his detention. Therefore, his right safeguarded under Article 22 (5) of the Constitution of India stands violated in the instant case, rendering his detention illegal and unsustainable in law.

10 Viewed thus, the impugned order of detention is unsustainable in law. Accordingly, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the detenu from the preventive detention forthwith, provided he is not required in connection with any other case.

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