Not Mentioning Grant Of Bail In Detention Order Is Serious Lapse, Gives Rise To Inference Of Non-Application Of Mind: J&K HC

It would be of extreme significance to note that while ruling on a very significant legal point pertaining to detention order, the Jammu and Kashmir and Ladakh High Court at Srinagar in a most learned, laudable, landmark, logical and latest judgment titled Owais Naseer Sheikh Vs UT of J&K in HCP No. 50/2023 and cited in 2024 LiveLaw (JKL) that was reserved on 01.05.2024 and then finally pronounced on 16.05.2024 while quashing the detention order has minced just no words to say in no uncertain terms that the non-mention of the petitioner’s bail status indicates a clear non-application of mind, rendering the detention order unsustainable in the eyes of law. To put it differently, we thus see that the Court has made it indubitably clear that the mention of the petitioner’s bail status must be done in the detention order and if it is not done it will only serve to render the detention order unsustainable in the eyes of the law as held so very commendably by the Court in this leading case. No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Puneet Gupta of Jammu and Kashmir and Ladakh High Court at Srinagar puts things in perspective and sets the ball in motion by first and foremost putting forth in para 1 that, “The Divisional Commissioner, Kashmir by Order No. DIVCOM “K”/62/2023 dated 19.05.2023 has placed Owais Naseer Sheikh @ Owais S/o Lt. Naseer Ahmad Sheikh R/o Sangrama Sopore District Baramulla, J&K under the preventive detention under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 and has lodged in Central Jail Kotbalwal, Jammu. It is this order, the brother of the petitioner is aggrieved of and seeks quashment of the same on the following grounds:

i) That the detenue has already been admitted to bail in the FIR No. 97/2018 under Section 8/22-29 of NDPS P/s Baramulla and FIR No. 60/2023 U/s 8/21 P/s Baramulla. The detaining authority has not mentioned this fact in the detention order nor any compelling reason has been given by the detaining authority to pass the detention order as the detenue was already in bail.

ii) That the grounds of detention are verbatim reproduction of the police dossier.

iii) The grounds of detention are vague, irrelevant and based on extraneous consideration and passing of detention on such grounds is unjustified and unreasonable.

iv) That the representation has been filed before the detaining authority but the same has not been decided as yet.”

As it turned out, the Bench then enunciates in para 2 that, “Counter affidavit has been filed by the respondents. In the counter affidavit, the respondents have admitted that the petitioner was apprehended in the FIRs in question. All statutory requirements stands fulfilled in the matter including handing over of the requisite material and making the petitioner aware of his right to make representation to the authorities concerned. The petitioner being involved in Narcotics and the detention order being valid, the petition is required to be dismissed. Law is well settled that the detention is not punitive in nature but to prevent the activities of the detenue on the basis of his past conduct. The subjective satisfaction of the detaining authority cannot be normally interfered by the constitutional court unless the court is otherwise satisfied that the same is apparently visible from the detention order. The rights guaranteed under the Constitution of India to the detenue cannot be compromised by the detaining authority while passing the detention order. In compliance to detention order, the warrant was accordingly executed by Executing Officer namely , ASI Rajinder Singh No.1127/B EXK-982214 of P/s Baramulla and was handed over to Superintendent Central Jail Kot Bhalwal Jammu for lodgment.”

As we see, the Bench then discloses in para 3 that, “Photocopy of the record is provided by learned counsel for the respondents.”

On the one hand, the Bench states in para 4 of this pragmatic judgment that, “Learned counsel has raised argument that the petitioner has been bailed out by the Principal Sessions Judge, Baramulla and 1st Additional Sessions Judge, Baramulla under NDPS Act in FIR No. 97/2018 and in FIR No. 60/2023 on 30.06.2018 and 19.04.2023 . However, there is no mention of those bail orders in the grounds of detention which clearly shows non application of mind on the part of the detaining authority while passing the order of detention. She further submits that the representation filed by the petitioner has not been decided as yet.”

On the other hand, the Bench then mentions in para 5 of this concise judgment that, “Per contra, learned counsel for the respondents submits that the petitioner is a member of an organized drug trafficking gang which is involved in procuring, transporting and sale of Psychotropic Substance and the petitioner is exploiting the immature minds of the younger generation by making them dependant on drugs and to make them habitual addicts. There is no flaw in the impugned detention order.”

Needless to say, the Bench then states in para 6 of this learned judgment that, “Heard learned counsel for the parties and perused the record.”

Most significantly and most sagaciously, the Bench then minces just no words to unequivocally mandate in para 7 what constitutes the cornerstone of this notable judgment underscoring that, “It is evident that the detaining authority has not applied its mind properly while passing the impugned order. While detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. Non-mention about the grant of bail in the detention is serious lapse which in turn gives rise to the inference that there is non-application of mind. The petitioner was granted bail in FIR No. 60/2023 just few days before the detention order came to be passed. Had it been brought to the notice of the detaining authority of the bail granted in favour of the petitioner, the detaining authority may or may not have passed the detention order. What prompted the detaining authority to pass the detention order after the petitioner was granted bail in the aforesaid FIR within the short period is not revealed from the detention order. On the aforesaid score, the instant petition deserves to be allowed. Similar situation has been dealt with by the Apex Court. It is quite relevant to quote following portion from para 8 of the judgment rendered by the Hon’ble Apex Court in the case of “Anant Sakharam Raut v. State of Maharashtra and another” reported in AIR 1987 SC 137:-

“We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith……”.”

Most remarkably, the Bench then points out in para 8 of this refreshing judgment that, “The representation filed by the petitioner has been duly received by the authorities concerned and the same is evident from the record produced by the respondents. It appears from the record that the representation of the petitioner has just been forwarded by one authority to another but no decision has been taken on the same. Learned counsel for the respondent could not also convince this Court as to why no decision was taken on the representation. The right of detenue to prefer representation on his detention is a fundamental right enshrined under Article 22(5) of the Constitution of India. There is no escape by the authorities not to consider the representation and pass orders on the same accepting or rejecting the representation. Non-consideration of the representation goes to core of the case. Undoubtedly the proceedings stands vitiated, the court is left with no other option but to quash the detention order.”

As a corollary, the Bench then hastens to add in para 9 of this robust judgment that, “In view of the above, this Court is of the considered view that the order of detention bearing Order No. DIVCOM “K”/62/2023 dated 19.05.2023 is not sustainable in the eyes of law. Accordingly the same is quashed. The petitioner is directed to be released from the custody provided he is not required in any other case.”

Finally, the Bench then concludes by holding in para 10 of this remarkable judgment that, “Disposed of as above.”

In a nutshell, we thus see that the Single Judge Bench comprising of Hon’ble Mr Justice Puneet Gupta of Jammu and Kashmir and Ladakh High Court has minced absolutely just no words to make it unequivocally clear that not mentioning the grant of bail in detention order is a serious lapse and gives rise to inference of non-application of mind. It is also made clear that while detaining a person under Public Safety Act, detaining authority is under a legal obligation to analyze all the circumstances and material and then to gather conclusion about the requirement of depriving a person of his personal liberty. It is thus a no-brainer and merits no reiteration that all the courts must comply with what the Jammu and Kashmir and Ladakh High Court has held in this leading case so decisively!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.