Point of Law: Detention - Not for the court to sit in the place of the Government and try to determine if it would have come to the same conclusion as the Government.

JUDGMENT :

VINOD CHATTERJI KOUL, J.

1. The order no. 05-DMK/PSA OF 2021 dated 2.02.2021, passed by District Magistrate, Kupwara (for brevity “detaining authority”) placing one, Bashir Ahmad Sheikh S/o Gh Ahmad Sheikh R/o Dildar Batpora Karnah District Kupwara (for short “detenu”) under preventive detention so as to prevent him from acting in any manner prejudicial to the security of the State and directing his lodgement in Central Jail, Jammu (Kot-Bhalwal) has been precisely challenged on the following grounds:

(i) that detention of detenu has mainly been ordered for his alleged involvement under NDPS Act and order of detention has been passed by detaining authority, which on the face of it is without jurisdiction.

(ii) that grounds of detention are replica of dossier of activities submitted by police authorities and detaining authority while passing order of detention is required to apply its own mind and has to derive independent subjective satisfaction on the basis of dossier placed before him, which is completely lacking and, therefore, detention order has been passed in a routine and casual manner.

(iii) that order of detention has been passed in hot haste by respondent no. 2 since fact of dismissal of regular bail application filed by detenu as also dismissal of default bail application by the learned designated court was neither brought into the notice of detaining authority nor the same has been reflected either in police dossier or in grounds of detention and, therefore, detention order has been passed on false, flimsy and vague grounds which cannot stand judicial scrutiny of this Court.

(iv) that allegations/grounds of detention are vague, ambiguous and have no close proximity and nexus with the slapping of the detention order under public Safety Act. The grounds of detention the make a mention that if the subject (detenu) is permitted to remain at large, he will continue to indulge in terrorist activities which will prove detrimental to security of the State and it has been said that normal laws have not proved sufficient to deter subject/detenu from indulging in such activities. The detaining authority has prepared grounds of detention as if the detenu was at large and not in custody in connection with FIR 57/2020. The detaining authority has failed to record not only subjective satisfaction but compelling reasons as well to order detention of an individual. The order of detention has been passed in a routine manner without application of mind.

(v) that the documents, statement of witnesses and other relevant material referred to and relied upon in grounds of detention by detaining authority in arriving at its subjective satisfaction, have not been supplied to detenu and as a necessary corollary thereof, he could not make an early representation against detention.

2. Respondents have resisted the petition by filing reply affidavit in which they have denied contentions contained in the petition and have submitted that there is no illegality in the order of detention as it was necessary to place detenu under preventive detention so as to prevent him from acting in any manner prejudicial to security of the State. Detaining authority has, in its affidavit, justified the grounds of detention as well as impugned detention order while denying allegation of non-supply of relevant material to the detenu. To substantiate their case, the respondents have produced the detention record.

3. I have heard learned counsel for parties and considered the matter.

4. Learned counsel for petitioner has stated that impugned order of detention is unconstitutional, illegal and bad in law inasmuch as detaining authority has not followed the Constitutional and Statutory procedural safeguards as provided under Article 22(5) of the Constitution of India. It is stated in the petition that in the month of July 2020 registered an FIR and booked detenu in the said FIR and arrested him during intervening night of 27/27th July 2020, when he was on his way to