Sanjay Dhar JUDGMENT
Sanjay Dhar, J.
1. Through the medium of instant petition, the petitioner has challenged the order of detention bearing No. PSA/100 dated 19.02.2020 passed by respondent No. 2 (hereinafter referred to as the 'Detaining Authority'), whereby the petitioner has been detained in terms of the provisions of J & K Safety Act, 1978 (hereinafter referred to as the 'Act').
2. The petitioner has challenged the impugned order of detention on the grounds that it has been passed by the Detaining Authority in a mechanical manner without proper application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier; that the petitioner has not been provided with the material on the basis of which the grounds of detention have been formulated; that mere registration of criminal cases against the petitioner cannot be a ground to pass the impugned order of detention, particularly, when the petitioner was already in custody and there are no compelling reasons discernible from the grounds of detention; that there has been inordinate delay in executing the warrant of detention upon the petitioner; that the petitioner is an illiterate person and grounds of detention and relevant documents were neither explained to him in the language understood by him nor the translated version of the said documents was furnished to the petitioner.
3. Counter affidavit has been filed by respondent No. 2 i.e. the Detaining Authority. In its counter affidavit, respondent No. 2 has contended that the petitioner is a notorious criminal and drug trafficker, against whom as many as four FIRs for offences under NDPS Act stand registered and his activities are highly prejudicial to the maintenance of public order. It has been further contended that all the procedural safeguards have been followed while passing the impugned order of detention against the petitioner and that the grounds of detention and material in support thereof have been furnished to the petitioner. It has also been contended that none of the legal, statutory or fundamental rights of the petitioner has been violated and that the impugned order of detention has been passed after proper application of mind.
4. I have heard learned counsel for the parties and perused the record of the case including the record of detention.
5. The first and foremost ground which has been urged by the learned counsel for the petitioner is that the Detaining Authority while formulating the grounds of detention has failed to apply its mind, inasmuch as the grounds of detention are almost xerox copy of the police dossier. A perusal of grounds of detention and the police dossier reveals that the language and expressions used in both the documents are almost similar to each other with intermixing of words here and there. This clearly shows that the detaining authority has acted in a mechanical manner.
6. The Supreme Court has, in the case of Jai Singh and others vs. State of Jammu and Kashmir, MANU/SC/0074/1985 : (1985) 1 Supreme Court Cases 561 clearly stated that where the grounds of detention are verbatim reproduction of the dossier submitted by the police, it goes on to show that there is non-application of mind on the part of the detaining authority. In Rajesh Vashdev Adnani vs. State of Maharashtra and others, (2005) 8 SCC 390, the Supreme Court again reiterated that where the detention order is verbatim reproduction of the police dossier, the said order suffers from non-application of mind on the part of the Detaining Authority.
7. In the face of the aforesaid legal position, it can safely be stated that the detaining authority in the instant case has acted in a mechanical manner while passing the impugned order of detention rendering it unsustainable in law.
8. The next ground urged by the learned counsel for the petitioner is that the entire material forming the basis of the grounds of detention was not supplied to him. This has been contradicted by respondent No. 2 in his affidavit.
9. The detention record produced before this Court contains report of execution and receipt executed by the petitioner. According to this receipt, the petitioner has received a total of 38 leaves comprising copy of detention warrant, grounds of detention, dossier and copies of the FIRs. As per the grounds of detention, four FIRs for heinous offences under NDPS Act had been registered against the petitioner, out of which in three cases challan has been filed before the Court, whereas in one case investigation is underway. It is not clear from the execution report whether copies of statements of witnesses recorded under Section 161 Cr.P.C. in the aforesaid cases have been furnished to the petitioner. The receipt of these documents has specifically been denied by the petitioner in the petition. Therefore, the contention of the petitioner that the entire material, which formed the basis of grounds of detention, was not supplied to him appears to be well founded.
10. The other ground urged by the petitioner is that there has been inordinate delay in execution of warrant of detention against the petitioner. A perusal of the record shows that the impugned warrant of detention has been issued on 19.02.2020. As per the grounds of detention, the petitioner was in custody at the time when the order of detention was passed. The record further goes on to show that the warrant of detention was executed/served upon the detenue on 10.06.2020 i.e. after about 111 days. The respondents have not explained as to why the warrant of detention could not be executed upon the petitioner for such a long period of time. Infact there is no explanation in this regard in the counter affidavit filed by respondent No. 2.
11. Though, the provisions of J & K Public Safety Act do not prescribe any time limit for execution of warrant of detention, but the warrant of detention needs to be executed upon the detenue with reasonable dispatch, particularly when a person is already in police custody, as in the instant case. The delay in execution of warrant of detention in cases like the case of instant nature, where the detenue is already in police custody, leads to delaying of communication of grounds of detention, as a consequence whereof, detenue is unable to make a representation against his detention at the earliest, which is a statutory right available to him. Thus, an important constitutional safeguard of the detenue gets infringed by unreasonable delay in execution of warrant of detention. I am supported in my aforesaid view by the judgment of Supreme Court in the case of Hem Lall Bhandari v. State of Sikkim and Others, MANU/SC/0472/1987 : AIR 1987 SC 762.
12. Relying upon the aforesaid judgment of the Supreme Court, this Court in the case of Balkar Singh v. State of J & K and others, MANU/JK/0027/1991 : 1992 SLJ 116, observed as under:-
"It may be difficult and even impossible in certain cases e.g. where person to be detained is absconding. In such cases no grave prejudice is liable to be caused. But where a person is already in police custody and an order of detention has been passed against him, delay in executing order of detention unsupported by any explanation, as a natural corollary, entails consequence of delaying communication of grounds of detention in turn. Therefore, any such delay is bound to defeat and even subvert the very safeguards contained in Section 13. Therefore, I have no reluctance in holding that when delay caused in execution of an order of detention leads to delaying of communication of grounds of detention and disable a detenue from making representation at earliest opportunity, there is infraction of mandatory provisions of Section 13 of the Act, rendering order of detention liable to be quashed."
13. The aforesaid observations of the learned Single Judge were noted with approval by a Division Bench of this Court in the case of Gh. Rasool Shah v. State and another, MANU/JK/0085/1999 : 2000 CRLJ 2548. Thus, the fact that the warrant of detention and the grounds of detention were served upon the petitioner in the instant case after about 111 days of passing of the impugned order of detention though the petitioner was already in custody of the police, renders the impugned order of detention unsustainable in law, particularly in the absence of any explanation much-less satisfactory explanation for delayed execution of the warrant of detention.
14. The next ground urged by the petitioner is that mere registration of criminal cases against the petitioner could not be a ground to pass the impugned order of detention without any compelling reasons, particularly when the petitioner was already in custody at the time of passing of the impugned order. It is well settled law that in normal course, criminal activities of a person should be tackled by having resort to the substantive provisions of the criminal law. Preventive detention is an exception to the general rule and it has to be resorted to only in exceptional circumstances. When a person has already been booked under substantive penal provisions in respect of his criminal activities and is facing trial in regard to the said offences, there must be compelling reasons with the Detaining Authority for taking resort to the preventive detention laws. In my said view, I am supported by the judgment of this Court in the case of Qazi Yasir Ahmed v. State and others, MANU/JK/0099/2011 : 2011 (2) JKJ 220.
15. In the instant case, the petitioner is facing trial in as many as three cases and in fourth case, which is under investigation, he was in custody of the police at the time of passing of the impugned order of detention. Therefore, it was incumbent upon the Detaining Authority to spell out compelling reasons for detaining the petitioner. A perusal of the impugned order of detention and the grounds of detention do not spell out any compelling reasons for detaining the petitioner. The fact that the respondents did not deem it necessary to execute the warrant of detention for about 111 days, when the petitioner was already in police custody, shows that there was no compelling reasons with the Detaining Authority to detain the petitioner under preventive detention law at the time when the impugned order of detention was passed. This reflects non-application of mind on the part of the Detaining Authority. Thus, the impugned order of detention becomes unsustainable in law.
16. The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and constitutional safeguards while passing the impugned order of detention against the detenue and that the said order has been passed mechanically and without application of mind. The impugned order of detention bearing No. PSA/100 dated 19.02.2020 passed by respondent No. 2 i.e. the District Magistrate, Kathua is, therefore, unsustainable in law and accordingly, the same is quashed. The detenue/petitioner is directed to be released from detention forthwith, if not required in any other case.
17. The record of detention, as produced, be returned to the learned counsel for the respondents.
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