Jammu & Kashmir High Court - Srinagar Bench
Sajid Ahmad Lone vs State Of J&K; & Ors on 27 June, 2016
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
HCP No.32/2016
CMP No.01/2016 Date of decision:27 -06-2016
Sajid Ahmad Lone
Vs.
State of J&K & others
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir
Appearing counsel:
For the Petitioner(s): Mr. M. A. Qayoom.
For the respondent(s): Mr. Shah Aamir, Dy. AG.
i) Whether to be reported
in Digest/Journal: YES
ii) Whether to be reported
in Press/Media: OPTIONAL
1) Impugned is the order of detention bearing
No.09/ DMP/PSA/16 dated 24.02.2016, passed by District Magistrate, Pulwama, in terms whereof, detenue has been detained and lodged in District Jail, Kathua.
2) First contention of the learned counsel for the petitioner is that the detenue has been deprived of making representation because he was not furnished copy of the dossier and other material forming base for his detention which is an essential requirement. It is also added that in the grounds of detention styled as "dossier" it has been mentioned that the detenue has been actively involved in various activities but no material to support such allegation 2 has been brought on record what to speak of furnishing of such material to the detenue.
3) The submission as made has a prevailing force because nothing has been brought on record to show that the above referred material has been furnished to the detenue, though respondents were given ample opportunities to produce requisite detention record which they have not. The material forming base for the dossier has not been furnished. It is also a fact that there is nothing on record to show that the detenue in any way has been acting prejudicially to the security of the State. The inference is that no such material has been available.
4) Another contention of learned counsel for the petitioner is that the detenue was shown arrested in connection with case FIR Nos.367/2010 and 414/2015. He neither had applied for bail nor was released, how the Detaining Authority has inferred that there is likelihood of the detenue being admitted to bail, is not forthcoming. In such situation, if the order of detention is to be passed, then the Detaining Authority has to record cogent 3 reasons so as to show compulsion for passing of such order of detention. It is this situation which has been attempted to be neutralized by recording that there is likelihood of the detenue being admitted to bail.
5) One of the requirements for deriving subjective satisfaction is to formulate the grounds of detention which shall form basis for passing the order of detention. In the order impugned as passed by District Magistrate, it is recorded; "Whereas on the basis of dossier detention placed before me by the Superintendent of Police, Pulwama vide his No.CRB/PSA/16/795 dated 23.02.2016 I am satisfied...", which shows that Detaining Authority has not formulated the grounds of detention, what to speak of scanning material for preparation of such grounds of detention. Copy of the grounds of detention are placed on file but not referred to in the order of detention. Non-application of mind is writ large. When it is so, invasion to personal liberty is impermissible.
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6) Another glaring example of non-application of mind is that the grounds of detention have been started with the words "Subject:- Dossier".
7) The material which has been considered by the detaining authority too has not been furnished to the detenue, as such, deprived of making effective representation as is right guaranteed under Article- 22(5) of the Constitution.
8) The cumulative effect of the aforesaid discussion leads to only one conclusion i.e. the order of detention impugned is not valid, as such, is quashed. The detenue, namely, Sajid Ahmad Lone S/O Mohammad Ramzan Lone R/O Lelhar Tehsil Kakapora District Pulwama is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case.
(Mohammad Yaqoob Mir) Judge Srinagar 27.06.2016 "Mohammad Altaf"