High Court of Jammu and Kashmir

Amandeep Singh vs. Union Territory Of J&K And Others

MANU/JK/0528/2020

31.12.2020

Criminal

Preventive detention is an exception to the general rule and it has to be resorted to only in exceptional circumstances

Through the medium of instant petition, the Petitioner has challenged the order of detention passed by Respondent No.2 ('Detaining Authority'), whereby the Petitioner has been detained in terms of the provisions of Jammu And Kashmir Safety Act, 1978.

The Petitioner has challenged the impugned order of detention on the grounds that, it has been passed by the Detaining Authority in a mechanical manner without proper application of mind, as the grounds of detention are mere reproduction of the dossier; that the petitioner has not been provided with the material on the basis of which the grounds of detention have been formulated; that mere registration of criminal cases against the petitioner cannot be a ground to pass the impugned order of detention.

The first and foremost ground which has been urged by the learned counsel for the Petitioner is that the Detaining Authority while formulating the grounds of detention has failed to apply its mind, as the grounds of detention are almost xerox copy of the police dossier. A perusal of grounds of detention and the police dossier reveals that, the language and expressions used in both the documents are almost similar to each other with intermixing of words here and there. This clearly shows that, the detaining authority has acted in a mechanical manner.

The Supreme Court has, in the case of Jai Singh and others vs. State of Jammu and Kashmir, clearly stated that where the grounds of detention are verbatim reproduction of the dossier submitted by the police, it goes on to show that, there is non- application of mind on the part of the detaining authority. The detaining authority in the instant case has acted in a mechanical manner while passing the impugned order of detention rendering it unsustainable in law.

Though, the provisions of J&K Public Safety Act do not prescribe any time limit for execution of warrant of detention, but the warrant of detention needs to be executed upon the detenue with reasonable dispatch, particularly when a person is already in police custody, as in the instant case. The delay in execution of warrant of detention in cases like the case of instant nature, where the detenue is already in police custody, leads to delaying of communication of grounds of detention, as a consequence whereof, detenue is unable to make a representation against his detention at the earliest, which is a statutory right available to him. Thus, an important constitutional safeguard of the detenue gets infringed by unreasonable delay in execution of warrant of detention.

When delay caused in execution of an order of detention leads to delaying of communication of grounds of detention and disables a detenue from making representation at earliest opportunity, there is infraction of mandatory provisions of Section 13 of the Act, rendering order of detention liable to be quashed."

It is well settled law that in normal course, criminal activities of a person should be tackled by having resort to the substantive provisions of the criminal law. Preventive detention is an exception to the general rule and it has to be resorted to only in exceptional circumstances. When a person has already been booked under substantive penal provisions in respect of his criminal activities and is facing trial in regard to the said offences, there must be compelling reasons with the Detaining Authority for taking resort to the preventive detention laws.

In the instant case, the Petitioner is facing trial in as many as three cases and in fourth case, which is under investigation, he was in custody of the police at the time of passing of the impugned order of detention. Therefore, it was incumbent upon the Detaining Authority to spell out compelling reasons for detaining the Petitioner. A perusal of the impugned order of detention and the grounds of detention do not spell out any compelling reasons for detaining the Petitioner. The fact that, the Respondents did not deem it necessary to execute the warrant of detention for about 111 days, when the Petitioner was already in police custody, shows that there was no compelling reasons with the Detaining Authority to detain the Petitioner under preventive detention law at the time when the impugned order of detention was passed. This reflects non-application of mind on the part of the Detaining Authority. Thus, the impugned order of detention becomes unsustainable in law.

In the instant case, the Respondents have not adhered to the legal and constitutional safeguards while passing the impugned order of detention against the detenue and that the said order has been passed mechanically and without application of mind. The impugned order of detention passed by Respondent No.2 is quashed.

Tags : Detention Proceedings Legality

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