High Court of Jammu and Kashmir

Hoshiar Singh Vs. Union Territory of J&K and Ors.

MANU/JK/0328/2021

01.06.2021

Criminal

Mere passing of the detention order is not sufficient as other statutory provisions are also required to be complied with in scrupulous manner

The Petitioner has challenged detention order passed by the Respondent No. 2 under provisions of J&K Public Safety Act on the ground that, the order was served upon the Petitioner when he was already in police custody under substantive offences; that the order impugned does not reflect the factual aspects of the case as the Petitioner had either been acquitted or granted bail in some of the FIR mentioned in the order. Further, the Petitioner was not supplied the relevant material nor was he made to understand the documents in the language he understood; that the execution of the detention order was also delayed though the petitioner was in custody of the Police Station. The Petitioner was deprived of making an effective representation before the Government and Advisory Board in respect of the detention passed by against him. Indeed, the prayer is for quashment of order impugned in the writ petition.

The order of preventive detention is passed with a view to prevent the person from committing such illegal activities in future which may be prejudicial and harmful and disturb the public order. There has to be plausible reason for passing preventive detention order by the detaining authority and there is no room for exhibiting callousness while passing such order as the liberty of the person gets curtailed. It is made clear by the Apex Court in Haradhan Shah's Vs. State of West Bengal that preventive detention and prosecution are not synonymous and having different purposes.

The mere passing of the detention order is not sufficient as the other statutory provisions are also required to be complied with in scrupulous manner. The perusal of the documents annexed with the counter affidavit filed on behalf of the Respondent No. 2 reveals that, while executing the order of detention the Petitioner has been supplied sixty leaves (60) and include copy of detention warrant, grounds of detention and copy of dossier and other relevant documents. The documents have been read over to the Petitioner in English and explained in Dogri language as well. The signature of the Petitioner on the receipt of grounds of detention is also there. The affidavit of Executing Officer Nayat Ali is also on record. The petitioner has been supplied the detention order along with the relevant record and the Petitioner has himself admitted in the petition that the detention order was served upon him in the jail. The Court does not find any reason to disbelieve the execution report as annexed with the counter affidavit filed in the case.

The impugned order which is more or less is the reflection of the dossier can be said to be the result of the non-application of mind on behalf of the Respondent No. 2. As the liberty of the person is involved and the person is to suffer detention without facing the trial, it becomes imperative upon the concerned authorities to pass the detention order with all consciousness.

In V.C. Mohan Vs. Union of India and others, the Hon'ble Apex Court noted that the factum of non placement of relevant documents by the concerned authorities before the detaining authority and held the same to have vitiated proceedings. The detention order is required to be quashed.

The very fact that, the Court has held that, the detention order is outcome of non-application of mind irrespective of nature of offences alleged against the Petitioner, the detention order does not sustain in the eyes of law. The order impugned in the writ petition is quashed. Petition disposed off.

Tags : Placement Relevant documents Detention

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