Full Judgment
NO:- 06/PSA of 2002
Dated 21 Sept. 2002
Whereas, I Dr. Pawan Kotwal, IAS, District Magistrate Poonch am satisfied that with a view to preventing Akil Ahmed S/O Khadim Hussain R/O Hayatpura Mangnar Tehsil Haveli District Poonch from acting in any manner prejudicial to the security of the State, it is necessary to do so;
Now, therefore, in exercise of the powers conferred by Section 8 of the J&K; Public Safety Act, 1978, I Pawan Kotwal, IAS District Magistrate Poonch do hereby order that the said Akil Ahmed S/O Khadim Hussain R/O Hayatpura Mangnar Tehsil Haveli District Poonch be detained at Sub Jail Kote Bhalwal, Jammu under J&K; Public Safety Act 1978 for a period of 12 months.
Dated:- 21 Sept., 2002.
Sd/-
(DR. PAWAN KOTWAL) IAS,
DISTRICT MAGISTRATE, POONCH
Forwarded in duplicate to the Sr. Supdt. of Police, Poonch for execution of the detention orders provided under Section 9 of the J&K; Public Safety Act 1978. Notice of the Order shall be given to Akil Ahmed S/O Khadim Hussain R/O Hayatpura Mangnar Tehsil Haveli District Poonch by reading over the same in the language he understands. A copy of the executed warrant with the endorsement be returned to this office for reference and record.
Sd/-
(DR.PAWAN KOTWAL) IAS,
DISTRICT MAGISTRATE, POONCHNO. DMP/J/1875-82 Dated 21/09/2002'
11. A plain reading of the aforesaid order shows that it does not refer to any material which formed the basis for the detaining authority to arrive at the satisfaction that it is necessary to prevent the detenue from acting in any manner prejudicial to the security of the State by keeping him in preventive custody. The grounds of detention no where indicate that the detenue had applied for a bail in case FIR 200/2001 of Police Station, Poonch in which he was taken in custody and had been released prior to the passing of the detention order. The grounds of detention further don't disclose that the detenue arrested in FIR 200 of 2001 is likely to be released on bail and would again indulge in subversive activities prejudicial to the security of the State, if not taken in preventive custody. This clearly shows that the detaining authority was not aware of the fact that the detenue has already been released on bail in the aforesaid FIR vide Court order dated 13.9.2002 and, thus, shows that lack of application of mind. The authority while making detention order must show his awareness regarding the fact that detenue is in custody and: if he is released on bail he may indulge in prejudicial activities and if he had already been released on bail is likely to indulge in subversive activities prejudicial to the security of the State, and failure to do so renders the detention as illegal, as has been done by the Apex Court in case entitled N. Mehra Raina v. Govt. of Tamil Nadu, AIR 1989 SC 2028. The allegations of mala fide and non application of mind can only be rebutted by a person who passed the detention order by filing counter affidavit and none else. It becomes more worse when the record of detention is not made available to the Court, despite directions to facilitate the Court to determine the validity or invalidity of the detention order on the touch stone of the challenge based on mala fide, irrelevant and vague grounds and non application of mind by the detenue in his petition. The detaining authority has no where mentioned in the detention order as to what was the material before him which satisfied him that the detention of the detenue was necessary and, thus, renders the detention order, having been passed without application of mind as illegal and invalid.
12. That apart, the failure of the detaining authority to show about the release of the detenue on bail in the aforesaid detention order clearly shows his unawareness about the factual matrix of the matter more particularly, in the absence of any explanation by filing a counter affidavit renders the order as colourable when there is no proximate nexus between the preventive action and the past activity of the detenue, the order of detention deserves to be struck down. The order does not show awareness of the detaining authority that the detenue has already been released on bail in the aforesaid FIR and, thus, would evidently make the order of detention to be vitiated, on account of non-application of mind. In other words, the order of detention, not referring to any material giving rise to the satisfaction to the detaining authority, reveals lack of proximity and rationale connection between the activities of the petitioner and the conclusion that his detention was necessary at the time of passing the order, and on this ground also the order of detention becomes invalid and illegal on account of non application of mind.
13. For the reasons aforesaid, this petition is allowed and the order of detention bearing No. 06/PSA of 2002 dated 21.9.200 and confirmed by respondent No. 1 vide Government Order No. Home/PB-V/2300 of 2002 dated 16-11-2002 is hereby quashed and the respondents are directed to release the detenue forthwith, if not detained in any substantive offence(s).