The detention order must be based on justifiable reasons and cannot be arbitrary, violating the constitutional rights of the individual.

ORDER :

1. This Letters Patent Appeal, has been filed by the appellant/detenu who is aggrieved by the order dated 27.07.2023, passed by the learned Single Judge in WP (Crl) No. 297/2022 whereby, the habeas corpus petition filed by the appellant, challenging the order of detention dated 07.04.2022 passed by the District Magistrate, Budgam (Respondent No. 2), by which the appellant was taken into preventive detention under the provisions of Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as “the act”) was dismissed.

FACTS

2. The brief facts of the case are as follows. The detenu is in preventive detention under the provisions of Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as the ‘PSA’) inter-alia that he is a threat to security of the state. The order of detention follows the registration of an FIR against him, being FIR No. 219/2021 of Police Station, Budgam, which include offences under several provisions of the UAPA. Allegations in the FIR reflect that upon receiving information about the activities of the appellant/detenu with anti-national elements, the Rashtriya Rifles, along with the police, raided the village where the appellant was living and during search of his premises, a Chinese pistol and eight rounds (cartridge) were recovered. Besides, there was also reference to certain statements made by co-accused persons in their disclosure memorandum, implicating the appellant as a terrorist sympathizer and as an over ground worker of the terrorist outfit LeT.

3. Inter-alia, ground taken by the appellant in the writ petition challenging the order of detention was the non-application of mind by the detaining authority. To buttress his arguments, learned counsel for the appellant has drawn the attention of this Court to the police dossier of the appellant prepared by the SSP Budgam and sent to the detaining authority, which in its last lines spelt out to necessity to detain the appellant/detenu under the relevant provisions of the PSA. Thereafter, the Ld. Counsel for the appellant has also drawn the attention of this Court to the corresponding paragraph which, according to him, is an identical reproduction of the police dossier pertaining to the appellant which reflects that there was no independent application of mind on the part of the District Magistrate and, therefore, the order is violative of the Articles 14 and 21 of the Constitution. He further says that the order of detention is nothing more than a copy of the police report and that the detaining authority has signed the same without even reading it.

4. The learned counsel for the appellant took us through the order passed by the learned Single Judge which reveals that though the learned Single Judge has taken cognizance of the fact that there was non-application of mind on the part of the detaining authority and that the order of detention was merely a reproduction of the opinion of the SSP Budgam (as was stated in the pleadings), the learned Single Judge did not did not give a finding on the said ground taken in the writ petition by the appellant.

5. Learned counsel for the respondents on the other hand has argued that though the ground of non-application of mind by the detaining authority was taken in the petition and that the same was referred to by the Ld. Single Judge in the order, there is nothing to suggest in the order that oral argument/submission on the point were ever made by either of the parties before the Ld. Single Judge. We reject the said argument put forth by the Ld. Counsel for the Respondents as once a ground is taken in the petition and the same has been referred to by the Court, then an opinion on the same was expected. It is also relevant to mention here that according to the learned counsel for the appellant that the appellant was granted default bail in the FIR case by the Ld. Trial Court on 18.01.2022, which was taken into account by the detaining authority as one of the factors that necessitated the deten