Rafiq Ahmad Magray vs State Of Jammu & Kashmir And Anr

Challenge is thrown to order No.17-DMK/PSA of 2018 dated 22.09.2018, issued by District Magistrate, Kupwara (for brevity "Detaining Authority") placing Shri Rafiq Ahmad Magray son of Ghulam Hyder Magray resident of Nawagabra Karnah District Kupwara (for short "detenu") under preventive detention and directing his lodgement in Central Jail, Kotebhulwal, Jammu.

The case set up by petitioner is that detenue was arrested by security forces without any cause and justification from his home and thereafter has been placed under preventive detention in terms of order dated 22.09.2018.

Reply has been filed by respondents wherein they have vehemently rebutted the petition on hand.

I have learned counsel for parties and have also gone through detention record and considered the matter.

Learned counsel for petitioner, while seeking quashment of the impugned order, projected various grounds but the star ground which prevailed during discussion is that the detaining authority has not prepared the grounds of detention itself which is pre-requisite for him before passing any detention order, thus non-preparation of grounds of detention by the detaining authority renders the impugned order bad in law.

In rebuttal, though the learned counsel for the respondents tried to justify the passing of order impugned but the detention record failed him in his effort. While going through the detention records, as produced, the ground projected appears to be forceful. The grounds of detention are replica of dossier with interplay of words here and there, which exhibits non-application of mind, in the process deriving of subjective satisfaction has become a causality. The Hon'ble Apex Court in the judgment rendered in the case of "Jai Singh and ors vs. State of J&K" (AIR 1985 SC 764) has held 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 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 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."

Next it is contended that the order is illegal as the detaining authority has mentioned in the grounds of detention that the detenue be detained for maximum period when the District Magistrate who passed the order of detention was not empowered to fix the period of detention, same is domain of the Government.

Fixing of period of detention is wholly and solely domain of the Government and the District Magistrate has no power in this regard. Similar position has been dealt with by the Hon'ble Apex Court in the judgment captioned "Makhan Singh Tarasika Vs. State of Punjab", AIR (39) 1952 SC 27, wherein it has been held as under:-

"The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate General, however, urged that in view of the provisions in S.11(2) that if the Advisory Board reports that there is no sufficient cause for the detention, the person concerned would be released forthwith, the direction in the order dated 30.7.1951 that the petitioner should be detained till 31.3.1951 could be ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioner's case when it is placed before the Advisory Board. It cannot be too often emphasized that before a person is deprived of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected.

In view of the facts of the present case and the law laid down by the Hon'ble Apex Court as quoted hereinabove, the order of detention impugned does not sustain on the above referred grounds alone, therefore, other grounds projected in the petition are not required to be dealt with.

The cumulative effect of the aforesaid discussion leads to the only conclusion i.e. the order of detention impugned bearing No. 17-DMK/PSA of 2018 dated 22.09.2018, passed by respondent No.2-District Magistrate, Kupwara, is not valid, as such, quashed. The detenue shall be released from the preventive custody forthwith provided he is not required in connection with any other case.

The record, as produced, be returned to the learned counsel for the respondents.

Pronounced today in terms of Rule 138(3) of J&K High Court Rules, 1999.