Rayees Ahmad Chack vs Ut Of J&K And Anr

1) Impugned in this petition is order of detention passed by District Magistrate, Kulgam (the detaining authority) vide order No.74/DMK/ PSA/19

dated 05.09.2019, whereby one Rayees Ahmad Chack S/o Ghulam Nabi Chak R/o Chackpora Manzgam D. H. Pora District Kulgam (the detenue)

has been placed in preventive detention with a view to prevent him from acting, in any manner, prejudicial to the security of the State. The detention of

the detenue has been ordered on the basis of material supplied to the detaining authority by Superintendent of Police, Kulgam, vide his letter dated 28th

of August, 2019.

2) As per the allegations contained in the grounds of detention, the detenue is resident of Manzgam D. H. Pora and 20 years old. He has read up to

7th class. He, in association with chronic stone pelters and Over Ground Workers of active terrorists, has been indulging in disruption of maintenance

of public order by way of pelting stones upon security forces/police and causing extensive damage to the government and public property. It is also

noted that on 29th of April, 2019, on the basis of a docket received from SHO, P/S, Manzgam, FIR No.16/2019 under Section 147, 148, 149, 336, 427,

307 RPC was registered in P/S, Manzgam and investigation taken up. It is stated that during investigation, the detenue was arrested on the basis of his

involvement in the instant case. Keeping in view involvement of the detenue in the activities detailed in the FIR, it has been thought imperative by the

detaining authority to place the petitioner in preventive detention with a view to prevent him from continuing with his activities calculated to threaten

security of the State.

3) The impugned order of detention has been assailed by the petitioner on numerous grounds. However, Mr. N. A. Ronga, learned counsel for the

petitioner, has pressed vehemently the ground that the order impugned is vitiated for total non-application of mind on the part of detaining authority. It

is submitted that though the detaining authority has shown its awareness that the detenue was arrested in FIR No.16/2019 but is totally silent about the

bail that was granted in favour of the detenue by the competent court of law. He, therefore, submits that once the detenue had been bailed out by the

competent court of law in FIR No.16/2019 and there is no allegation that after his release in the aforesaid FIR that the detenue had again indulged in

the activities prejudicial to the security of the State, there was no reason or justification to place the petitioner under preventive detention.

4) 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.

5) Having heard learned counsel for the petitioner and perused the record, I am of the view that the order impugned is vitiated by non-application of

mind of the detaining authority and, therefore, cannot sustain in law. Indisputably, the detenue, as is indicated in the grounds of detention, was arrested

in FIR No.16/2019. Petitioner has specifically claimed in his petition that he was released on bail and was subsequently taken into preventive detention

in the execution of impugned order of detention. There is nothing in the grounds of detention or in the reply affidavit to indicate that the detaining

authority was aware that the detenue had been released on bail in FIR No.16/2019 and that there was no remedial measure taken by the State to

assail the order granting bail in favour of the detenue. There is also nothing on record to indicate that after the release on bail in FIR No.16/2019, the

detenue had again indulged in the activities prejudicial to the security of the State. The impugned order is thus vitiated for total non-application of mind

on the part of detaining authority and, therefore, cannot sustain in law.

6) Taking conspectus of the aforesaid discussion, this petition is allowed. The impugned order of detention is set aside and the detenue is directed to be

released from the preventive detention forthwith, provided he is not involved in any other case.