MOHD RASHID MALIK Vs. STATE OF JAMMU AND KASHMIR
LAWS(J&K)-2020-2-80
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 28,2020

Mohd Rashid Malik Appellant
VERSUS
STATE OF JAMMU AND KASHMIR Respondents




JUDGEMENT

Sanjeev Kumar,J. - (1.)Impugned in this petition is an Order No.04 of 2019 dated 25.08.2019 passed by the District Magistrate, Jammu (for short' the detaining authority) whereby the petitioner (hereinafter referred to as 'the detenu') has been detained in preventive custody with a view to prevent him from acting in any manner prejudicial to the security of the State. The case set up by the detenu is that he is a political worker affiliated to Peoples Democratic Party. He claims to have contested the election on PDP mandate from Doda constituency. The wife of the detenu is also a political and social activist and is presently Sarpanch of the Village Upper Sunjwan. It is stated that because of the political reasons, he has been targeted by his rivals and involved in several criminal cases. It is submitted that in all the cases registered against him, he is either been acquitted or the cases have been closed by the Police as 'not proved'. Out of the 09 different FIRs registered against the detenu for the period ranging from 1997 to 2019, he has been acquitted in two whereas 05 FIRs against him have been closed and one FIR No. 110/2018 has been stayed by the High Court in CRM No. 105/2018. It is, thus, urged that out of 09 FIRs only one FIR No.25/2019 registered for the commission of offences under Sections 341/336 and 148 RPC is pending investigation.
(2.)In the backdrop of the aforesaid averments, the detenu claims that the impugned order of detention has been passed by the District Magistrate concerned not with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, but, for collateral purpose, i.e., to deter the detenu from pursing his legitimate political activities. The impugned order of detention has been inter alia assailed by the detenu on the following grounds:-
(i) That the impugned order of detention is totally illegal, arbitrary and contrary to the provisions of Jammu and Kashmir Public Safety Act;

(ii) That basis of placing the detenu under detention, i.e., in 09 different FIRs registered against him does not exist for the reason that out of 09 FIRs relied upon by the District Magistrate in the impugned order, 05 have already been closed, one stayed by this Court and only one FIR that too for a petty offence is pending investigation.

(iii) That the requisite material, i.e., the copies of all the FIRs relied upon by the detaining authority have not been supplied to the detenu, as a result thereof, right of the detenu to make effective representation against his detention has been taken away.

(iv) That the detaining authority has not shown his awareness with regard to the outcome of the FIRs taken note by it and relied upon in the grounds of detention. The order impugned, therefore, is vitiated having been passed without any application of mind.

(v) That out of 09 FIRs relied upon in the detention order, at least 07 FIRs pertain to the period from 1997 to 2015 and therefore, would constitute stale material for invoking the powers of detention by the District Magistrate under Section 8(1)(a) of the J&K Public Safety Act.

(vi) That the detaining authority has only acted on the dossier supplied by the Senior Superintendent of Police, Jammu and has not applied its independent mind to arrive at requisite satisfaction and this fact alone vitiates the order of detention.

(3.)Interestingly, the District Magistrate, i.e., detaining authority has not come forward to defend its order of detention. Counter- affidavit has been filed by one Rajinder Singh, Senior Superintendent of Police, who is not the detaining authority, but, is an authority, which has supplied the dossier to the District Magistrate. The mere fact that the District Magistrate has not come forward to defend its order and has left it to the Senior Superintendent of Police, Jammu to contest the matter and to file the counter-affidavit justifying the detention of the petitioner, is a ground sufficient in itself to quash the order of detention. The allegation of the petitioner that there is no independent application of mind by the detaining authority and the detention order has been passed merely on the basis of the request of the Senior Superintendent of Police, gets fully substantiated by sheer fact that it is the Senior Superintendent of Police, Jammu, who has come forward to defend the detention and filed the counter-affidavit. The District Magistrate for the reasons best known to it has chosen not to defend its order of detention. Since the order of detention must go on this ground only, as such, there is hardly any need to advert to the other grounds of challenge urged in this petition. Yet, I have considered other grounds of challenge also urged by the petitioner to assail the order of detention.
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