The High Court of Jammu & Kashmir and Ladakh at Srinagar allowed a habeas corpus petition and quashed Order No.13/DMA/PSA/DET/2024 dated April 20, 2024 passed by the District Magistrate, Anantnag, whereby the petitioner was detained under the J&K Public Safety Act, 1978. Justice Moksha Khajuria Kazmi found that the detaining authority had failed to apply its mind while passing the impugned order and that the detention was based on mistaken identity.
The petitioner contended that the detenue was a law-abiding citizen who had never been engaged in any subversive activity detrimental to the security of the Union Territory of Jammu and Kashmir. The detenue was apprehended without proper justification on April 15, 2024 by Police Station Anantnag and was thereafter transferred to Central Jail, Kot Bhalwal, Jammu on April 20, 2024 under preventive detention. The petitioner contested the detention order on the grounds of non-application of mind, failure to disclose the material relied upon for detention, non-compliance with procedural safeguards, and absence of a connection between the allegations and the detenue.
The respondents, on the other hand, argued that FIR No. 49/2024 under Sections 18, 20 of the UAP Act, Sections 7/25 of the Arms Act, and Sections 3/4 of the Explosive Substances Act was registered at Police Station Anantnag in connection with the arrest of a hybrid terrorist of the JeM outfit. During the investigation, it was revealed that the hybrid terrorist was in contact with other terrorists and OGWs with the aim of spreading terror activities in District Anantnag, especially in view of the upcoming General Elections, and the detenue was also apprehended as one of the suspected persons.
The Court found from the grounds of detention that the respondents had intended to detain another individual, but on account of mistaken identity, the detenue had been detained in his place. The Court extracted paragraph 2 of the grounds of detention which stated that the other individual was also apprehended, but the evidence against him was insufficient for prosecution under substantive law. The Court noted that this extract suggested that the detaining authority had failed to apply its mind to the material placed before it while passing the impugned order, and such lapse goes to the very root of the impugned order.
It was observed that the non-application of mind by the detaining authority in issuing the impugned order was evident on the face of the record, and therefore, the action taken could not be sustained in law. The Court found absolutely no justification available on record or in the counter affidavit filed by the respondents as regards the factum of mistaken identity. It noted that the vitiating fact in the grounds of detention was serious, as the detenue was not involved in the criminal case forming the basis of detention, and the detaining authority appeared to rely improperly on material that did not establish the detenue’s involvement.
Reliance was placed by the Court on Ameena Begum v. State of Telangana (2023) 9 SCC 587, in which it was held that a detention order could not be sustained if it appears to be the result of non-application of mind. The Court also cited Jai Singh and Ors. v. State of Jammu and Kashmir (AIR 1985 SC 764), which observed that if the detention order was verbatim copy of the dossier, it speaks about non-application of mind by detaining authority and that the liberty of a subject was a serious matter and it was not to be trifled in this casual, indifferent and routine manner.
Conclusively, the Court concluded that the petitioner had been able to prove that the detaining authority had not applied its mind while issuing the impugned order and directed the respondents to release the detenue forthwith.
Cases relied on:-
Ameena Begum v. State of Telangana
Jai Singh and Ors. v. State of Jammu and Kashmir
Appearances:
Petitioner: Sheikh Younis, Advocate
Respondents: Ilyas Nazir Laway, GA
