Point of Law: Quash of detention order - detention order, as not amounting to effect communication of grounds, and resultant deprivation of the right to make representation against the same.

JUDGMENT :

1. Impugned in this Heabus Corpus petition with a prayer for quashment thereof is the detention order no. 81/DMB/PSA/2019 dated 31.12.2019, purporting to have been passed by District Magistrate Baramulla, whereunder detenu namely Tawheed Ahmad Lone s/o Mohammad Hamzah lone R/o Chatipora, Rafiabad, Baramulla, District Baramulla, is under detention.

2. It is submitted that the detenu is never involved in any illegal activity. The allegations levelled against the detenu in the grounds of detention are vehemently denied to be correct, as the same are baseless. Therefore, the detention order deserves to be quashed.

3. Briefly stated the case of the petitioner is that the detenu was arrested in the month of July 2019 by Police component Rafiabad and implicated in a case FIR 114/2019 u/s 18, 39 ULA (P) Act 7/25 A. Act. Police station Dangiwacha. However, whether the detenu filed the bail in the said FIR before the competent court of Jurisdiction not mentioned by the competent authority while passing the detention order.

4. The challenge to the impugned order is inter alia made on the grounds that, the allegations against the detenu have no nexus with the detenu and have been fabricated by the police to justify the illegal action of detaining him in preventive custody; the grounds of detention are vague, non-existent and the impugned order, being based on such vague, non-existent grounds, deserves to be quashed; the detenu is innocent and has not committed any offence of whatsoever nature; the detaining authority has not applied its mind while issuing the impugned order; the detenu was already arrested and was in police custody in connection with a case the aforesaid FIR, the detenu being in the police custody, is uncalled for; the satisfaction recorded by the detaining authority is vis-à-vis the alleged activities of the detenu being prejudicial to the security of the state; the material in the shape of dossier has not been furnished to the detenu nor has he been furnished the copy of FIR, statements allegedly recorded under section 161, 164-A of the Code of Criminal Procedure, seizure memo, recovery memo as mentioned in the grounds of detention so that the detenue could have made an effective representation against his detention to the Competent Authority;

5. In his counter affidavit, respondent no.2 has stated that the detenu’s activities being prejudicial to the security of the State, his detention was necessary to prevent him from indulging in such acts, which was also approved by the Government and the State Advisory Board constituted u/s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit has contended that in circumstances of the case the impugned detention is well founded in fact and law. But despite the directions, detention record not produced.

6. Heard learned counsel for the parties, perused the writ record and considered the matter. Photo copy of detention record also produced.

7. The contention raised by learned counsel for the petitioner-detenu with reference to the detaining authority having not mentioning in the order about whether petitioner-detenu has made any bail application, this fact has not mentioned either in the grounds of detention or in the impugned order. Learned counsel for the Petitioner has vehemently contended that the detenu was in police custody and there was no chance of his being released on bail. In this regard, my attention has been drawn to the averments contained in grounds of the writ petition, wherein it was speci?cally urged that 'the detenu was already in custody and he had neither applied for bail not bail was otherwise granted to him.' It is contended that in these circumstances, there was no warrant for passing the order of preventive detention.

8. Learned counsel in support of his submissions has referred to and relied upon the Division Bench judgment of this court, reported as 2020 (2) JKJ[HC] 102; 2019 (5)