Jammu & Kashmir and Ladakh High Court Quashes Detention Order Against Petitioner, Citing Non-Application of Mind by Detaining Authority and Lack of Fresh Material Justifying Detention

Court’s Decision:

The High Court of Jammu & Kashmir and Ladakh quashed Detention Order No. 03/DMG/PSA of 2023, dated 10.08.2023, passed by the District Magistrate, Ganderbal. The court ruled that the order was unsustainable due to non-application of mind by the Detaining Authority, directing the petitioner to be released from custody unless required in another case.

Facts:

The petitioner was detained under the Public Safety Act (PSA) based on FIR No. 199/2020, registered under Sections 13 and 18 of the Unlawful Activities (Prevention) Act at Police Station Ganderbal. The District Magistrate issued the detention order on the grounds that the petitioner posed a threat to national security, citing concerns about future activities, especially during the Shri Amarnath Yatra, 2023, and Independence Day.

Issues:

• Whether the detention order was passed with proper application of mind by the Detaining Authority.
• Whether the detention order was based on any tangible or fresh material justifying the petitioner’s detention.

Petitioner’s Arguments:

The petitioner argued that:

1. The detention order was merely a replica of the police dossier.
2. No fresh illegal activities were attributed to the petitioner to justify the detention.
3. The petitioner had not been provided with material forming the basis of the detention order, depriving him of the opportunity to make an effective representation.

Respondent’s Arguments:

The respondents defended the detention order, citing the petitioner’s past activities and the FIR registered against him. They argued that the petitioner posed a potential threat to the security and integrity of the country, justifying his preventive detention.

Analysis of the Law:

The court emphasized that preventive detention should not be used casually and must be based on fresh and tangible material that justifies the threat posed by the detainee. The grounds of detention must reflect an independent application of mind by the Detaining Authority, not merely a verbatim reproduction of the dossier provided by the police.

Precedent Analysis:

The court referred to two key judgments:

1. Jai Singh and Ors. Vs. State of J&K (AIR 1985 SC 764): The Supreme Court had held that detention orders must show independent satisfaction by the Detaining Authority and should not simply be a reproduction of the police dossier.
2. Noor-ud-Din Shah v. State of J&K & Ors. (1989 SLJ 1): The High Court had quashed a detention order for being a reproduction of the police dossier, stating that it exhibited non-application of mind by the Detaining Authority.

Court’s Reasoning:

The court found that the grounds of detention in the present case were a verbatim copy of the dossier provided by the police. The Detaining Authority had not applied its mind independently while issuing the detention order, which made the order illegal. Furthermore, the court noted that the respondents had the option to seek cancellation of the petitioner’s bail but did not pursue that remedy, instead resorting to preventive detention.

Conclusion:

The court quashed the detention order, holding it invalid due to non-application of mind and lack of fresh material justifying the detention. The petitioner was ordered to be released unless required in connection with another case.

Implications:

This ruling reinforces the principle that preventive detention orders must be based on independent application of mind by the Detaining Authority, and not merely on police dossiers. It also underscores the importance of fresh material to justify continued detention, particularly when the detainee has been granted bail.

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