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Judgment
Challenge is thrown to order No.29-DMK/PSA of 2018 dated 29.11.2018, issued by District Magistrate, Kupwara (for brevity "Detaining Authority") placing Wakar Ahmad Malik S/o Ab. Rehman Malik R/o Tulwari, Langate District Kupwara (for short "detenu") under preventive detention and directing his lodgement in Central Jail, Kotebhulwal, Jammu.
The petitioner's case, as set out in the petition, is that the detenue, was arrested by the by the police personal of police Station Langate on 30.6.2018 and was taken to Police Station, Langate where he was kept in illegal custody till 22.7.2018. The detenue was later on booked and arrested in FIR No. 71/2018 U/s 7/25 A. Act registered at P/S Kralgund. The detenue was bailed out on 3.10.2018 but was again arrested by the police at the gate of District Jail Kupwara on his release in the said FIR. The detenue was never released from custody physically after he was initially arrested on 30.6.2018. Learned counsel further added that there was no fresh material available before the respondents for detaining the detenue nor the same was reflected in the grounds of detention. Therefore, in absence of any fresh material and having regard to the fact that he was not released from custody, the respondents could not have passed the order of detention and detained the detenue under preventive law. Detention of the detenue is said to be patently illegal and without any basis and cogent material which renders the detention illegal. The respondents are stated to have violated the procedural safeguards as provided under Article 22(5) of the Constitution of India and have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of detention are stated to be vague, non-existent and unfounded. Non application of mind in passing the impugned order has also been pleaded in the writ petition.
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 as referred in petition. It is being contended that the detaining authority has not prepared the grounds of detention with proper application of mind. Same being in breach of legal mandate renders the impugned order non-est. Grounds are stated to be just a replica of dossier. Even word 'subject' remains unchanged therein.
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. Grounds prepared are almost verbatim copy of dossier. 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. 29/DMK/PSA of 2018 dated 29.11.2018, 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.