HC quashes PSA of three

13/02/2021

Jammu, Feb 12: The J&K High
Court Srinagar Wing while hearing three different petitions, quashed the detention under PSA of three.
Justice Sanjeev Kumar of J&K High Court while hearing two different petitions quashed the detention order of Mudasir Ahmad Dar and Rayees Ahmad Chack whereas Justice Rajnesh Oswal quashed the detention order of Shafqat Abrar.
Justice Sanjeev Kumar while quashing the detention order No.62/DMS/ PSA/2019 dated 11th of October, 2019, whereby one Mudasir Ahmad Dar S/o Abdul Rasheed Dar R/o Pinjoora Shopian, observed that 5) The grounds of detention also do not indicate any compelling reasons as to why the preventive detention of the detenue was necessitated particularly when he was already in the custody of the State for commission of very serious offences under ULA(P) Act. This clearly speaks about non-application of mind on the part of detaining authority. It is true that as held by the Supreme Court in Hardhan Saha v. State of W.B (1975) 3 SCC 198, that there is no parallel between prosecution in a Court of law and a detention order passed under detention law. One is a punitive action whereas the other is preventive. In one case, a person is punished for his guilt and the standard of proof is beyond reasonable doubt whereas in preventive detention, a man is prevented from acting in a manner which is prejudicial to the maintenance of public order or security of the State, as the case may be. It may also be true that a detention order is required to be passed by the detaining authority on his subjective satisfaction but when the non-application of mind by the detaining authority is writ large, it vitiates such satisfaction and renders the order of detention bad in the eyes of law. Court further observed that there is no dispute with regard to the proposition of law that a person in custody in connection with commission of substantive offence can also be detained under preventive law but in doing so, the detaining authority is under an obligation to indicate, in clear terms, the compelling reasons for taking such action. In the instant case, admittedly, the detenue was in custody of the police in connection with FIR No.91/2019 registered in Police Station, Shopian, for commission of very serious offences, some falling under Chapter IV and V of ULA(P) Act. The petitioner had not even applied for bail. In such circumstances, what made the detaining authority to pass the detention order is not forthcoming from the grounds of detention nor the same has been explained or clarified by the detaining authority in the reply affidavit filed in opposition of this petition. The impugned order is thus vitiated for total non-application of mind on the part of detaining authority and, therefore, cannot sustain in law.
While quashing the detention order detention passed by District Magistrate, Kulgam (the detaining authority) vide order No.74/DMK/ PSA/19 dated 05.09.2019, whereby one Rayees Ahmad Chack S/o Ghulam Nabi Chak R/o Chackpora Manzgam D. H. Pora District Kulgam (the detenue) has been placed in preventive detention, Justice Sanjeev Kumar observed that of the view that the order impugned is vitiated by non-application of mind of the detaining authority and, therefore, cannot sustain in law. Indisputably, the detenue, as is indicated in the grounds of detention, was arrested in FIR No.16/2019. Petitioner has specifically claimed in his petition that he was released on bail and was subsequently taken into preventive detention in the execution of impugned order of detention. There is nothing in the grounds of detention or in the reply affidavit to indicate that the detaining authority was aware that the detenue had been released on bail in FIR No.16/2019 and that there was no remedial measure taken by the State to assail the order granting bail in favour of the detenue. There is also nothing on record to indicate that after the release on bail in FIR No.16/2019, the detenue had again indulged in the activities prejudicial to the security of the State. The impugned order is thus vitiated for total non-application of mind on the part of detaining authority and, therefore, cannot sustain in law.
While quashing the detention detention bearing No. 59/DMK/PSA/2019 dated 20.08.2019 issued by respondent No. 2 by virtue of which the petitioner has been ordered to be detained under the J&K Public Safety, Justice Rajnesh Oswal observed that It is only after the detenue is supplied all the material that has been relied upon by the detaining authority, that he can make an effective representation to the Detaining Authority and also to the Government. Failure on the part of the respondent No. 2 to supply material relied upon by him, while passing the detention order renders it illegal.

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