Excelsior Correspondent
JAMMU, Sept 12: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Sanjeev Kumar and Justice Rahul Bharti has set-aside the judgment of writ court and quashed the detention order bearing No. 07-PSA-2022 dated 28.01.2022 read with corrigendum bearing No. DMU/JC-4160 dated 02.12.2022 and directed to release the detenue namely Mohd Irfan from the preventive custody forthwith unless he is required in some other case.
While quashing the detention order, Division Bench observed, “it is true that this court in Habeas Corpus petition against such detention cannot go into the mind of detaining authority to find out as to how and on what basis the detaining authority has derived its satisfaction. However, nothing prevents the constitutional court to look into the material relied upon by the detaining authority, who derived its satisfaction, to find out whether the relevant material has been considered and that there is no non-application of mind on the part of the detaining authority”.
“If the relevant material is not provided to the detaining authority or the complete information about the activities of the detenue is withheld, there is every possibility of the detaining authority being misled in deriving its satisfaction with regard to the necessity of placing the detenue under detention. It is trite law that non-application of mind vitiates detention”, DB said.
“This is a case, where not only the relevant material was withheld from the detaining authority but is also a case, where on the basis of material supplied, the detaining authority could not decide as to whether the detenue was to be placed under detention for maintenance of public order or for preventing him from acting in any manner prejudicial to the security of the State”, the DB said, adding “we are also at loss to understand as to, from where, the detaining authority has borrowed the terms like “integrity and sovereignty of the country”.
“The Jammu and Kashmir Public Safety Act, 1978 which has been invoked by the detaining authority in the instant case does not provide for placing anybody under detention for maintaining the integrity and sovereignty of the country. Viewed from any angle, the order of detention passed by the detaining authority is not sustainable in law”, the DB said, adding “the Writ Court has not appreciated these aspects of the matter and, probably, the respondents did not bring the entire record to the notice of the Single Judge”.
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