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Synopsis

The Jammu & Kashmir and Ladakh High Court recently set aside the detention order passed by District Magistrate, Anantnag against one Molvi namely Mohammad Amin Pala.

The Molvi was arrested in the month of October 2021 by the police on the ground that he, being an Imam, used to deliver sermons and speeches in Jamia Masjid Hanfia Pethbugh Dialgam Anantnag to mobilize common masses against the sovereignty and integrity of UT of J&K.

Thereafter, the District Magistrate, Anantnag in September 2022 ordered Imam's detention in exercise of powers conferred on him under Section 8 of the J&K Public Safety Act, 1978.

The same was challenged before the high court on the ground that the detention order passed by DM, Anantnag was in breach of the provisions of Article 22(5) of the Constitution of India.

The detenue's counsel contended that the allegations/grounds of detention were vague and mere assertions of the detaining authority.

It was stated that the allegations whose mention was made in the grounds of detention had no nexus with the detenue and had been fabricated by the police in order to justify its illegal action of detaining the detenue.

In addition, it was stated that the detaining authority had not prepared the grounds of detention by itself, whereas, the same was a replica of the police dossier.

On the other hand, the respondent parties submitted that the grounds of detention gave a complete account of the activities of the detenue, which on the face of them were highly prejudicial for the maintenance of security of the State, as such, there was no option left but to order the detention of the detenue under Public Safety Act.

After perusal of the record, court noted that the detenue had not been supplied with the material based on which he had been detained. Court said, "It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue. If the detenue is not supplied the material on which detention order is based, the detenue cannot be in a position to make an effective and meaningful representation against his detention".

Court further pointed out that the time frame within which representation was required to be filed by the detenue against the detention order had not been conveyed to the detenue. "This too has to be treated a breach of right of the detenue under Section 13 of Public Safety Act and Article 22 of the Constitution of India," said the court. 

Furthermore, regarding the allegations against the detenue, court held that no specific instance had been cited by the detaining authority to justify as to what the detenue had said on what occasion, so as to order his preventive detention.

"The detention order based on such vague and stale grounds is not sustainable, for the reason that the detaining authority before passing the order has not applied its mind to draw subjective satisfaction to order detention of the detenue by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India," held the court while placing reliance on judgments of Supreme Court in the cases of Jahangirkhan Fazal Khan Pathan Vs. Police Commissioner Ahmadabad (1989) and, Abdul Razak Nanekhan Pathan Vs. Police Commissioner Ahmadabad (1989).

Accordingly, court quashed the order passed by DM, Anantnag and ordered the detenue to be released from the preventive custody forthwith.

Case Title: Molvi Mohammad Amin Pala v. Union Territory of J&K & Ors.