CASE TITLE:
Mustaq Ahmed Ahangar Vs Union Territory of J&K& ANR
DATE OF ORDER:
28th April, 2022
JUDGE(S):
Hon’ble Justice Sanjay Dhar
PARTIES:
PETITIONER: Mustaq Ahmed Ahangar
RESPONDENT: Union Territory of J&K& ANR
IMPORTANT PROVISION
Section 147, 148, 336, 307, 188, 269 of Indian Penal Code.
SUBECT
It is common law that preventive detention orders can be issued even when a person is in police/judicial custody or is involved in a criminal case, but compelling reasons must be documented. The Detaining Authority is required to record the compelling reasons why the detenue could not be deterred from engaging in subversive activities by using normal law, and in the absence of these reasons, the detention order becomes unsustainable in law.
BRIEF FACTS
- The court was hearing a petition challenging a detention order issued by the District Magistrate of Srinagar on the grounds that it was mechanically produced without application of mind, inasmuch as the grounds of detention are vague and non-existent, and no prudent man can make a representation against such allegations.
- The petitioner claimed that the Constitutional and statutory procedural safeguards were not followed in this case.
- It was also argued that the detaining authority acted without thinking when issuing the contested detention order, given that the detainee had already been admitted to bail in one of the FIRs, which was mentioned in the grounds of detention.
- He stated that there was no application of mind on the part of the detaining authority because the detenue was already in custody in connection with a FIR for offences under Sections 147, 148, 336, 307, 188, and 269 IPC of P/S Pantha Chowk, mention of which has been made in the grounds of detention, and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the respondent contended that detenue activities are highly detrimental to the security of the state.
- It was claimed that the detention order and grounds of detention, as well as the material relied on by the detaining authority, were handed over to the detainee and read over and explained to him.
- The petitioner then contended that the impugned detention order is the result of the detaining authority's failure to apply its mind, because the grounds of detention make no mention of the fact that the petitioner had previously been acquitted in a FIR mentioned in the grounds.
QUESTION RAISED
Whether preventive detention orders can be issued even if a person is in police/judicial custody or is involved in a criminal case, but compelling reasons must be documented or not?
ANALYSIS OF THE COURT
- The Court noted that the non-mentioning of this important fact in the grounds of detention exhibits non-application of mind on the part of detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law.
- The Court also noted that the detaining authority has not stated any reason, let alone compelling reasons, for resorting to preventive detention, despite the fact that the petitioner was already booked and arrested in the said FIR.
CONCLUSION
In light of the foregoing, the Court concluded that the respondents in this case violated vital safeguards against arbitrary use of the law of preventive detention, rendering the impugned detention order unsustainable in law. In light of the foregoing, the court ordered that the detainee be released from preventive custody if he is not required in connection with any other case.
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