HC quashes detention of auto-rickshaw driver
“The detaining authority has not applied his mind while passing the impugned order”
Srinagar March 16: The J&K High Court today quashed the detention of an auto-rickshaw driver from Bandipora taken into custody during the arrest spree following abrogation of the autonomy of J&K on 5th of August 2019.
The “simpleton” auto driver Mudasir Ahmad Wani son of Gh Ahmad Wani was one among scores detained by the authorities post 05 August.
Residing in the Pazalpora village of the North Kashmir district of Bandipora, the auto driver was placed under Public Safety preventive detention law by the magistrate and taken to Central Jail Srinagar on 11th of august 2019.
Despite curfew and communication lockdown, the family of Mudasir made every effort to get their lone bread winner released. But all their efforts failed.
Left with the only remedy of judicial intervention they arranged some money and hired the services of B.A.Tak an advocate at J&K High Court.
The lawyer told the court “the detenue is an auto driver and remains always busy in earning his livelihood”.
“The detaining authority while passing Mudasir’s detention order has said that his activities are prejudicial to the security of India as well as prejudicial to the maintenance of public order, reflects non-application of mind on the part of detaining authority”, the lawyer pleaded.
He argued “the detention order is to be passed either for public order or for security of the State but not under both heads. The grounds of detention are a ditto copy of the Police dossier”.
Detenue Mudasir is an illiterate person and grounds of detention, served upon him, are based on hyper technical language, which is neither understandable nor communicable to him, the lawyer argued further.
The government authorities however vehemently resisted the petition.
The petitioner counsel argued that the detention order has been passed on both expressions, viz. “acting in any manner prejudicial to the security of the Country/State” and “acting in any manner prejudicial to the maintenance of public order”, which reflects non-application of mind on the part of detaining authority.
Justice Tashi Rabstan who heard the case cited certain apex court judgments and observed that reliance on both the bases in the grounds of detention furnished to detenue is to be held illegal one and as a corollary thereof impugned order is vitiated.
While going through the detention record, he found the dossier prepared by police forming part of detention record. Comparing grounds of detention with dossier, it came to fore that grounds of detention were a ditto copy of the dossier.
The judge said that the detaining authority has to go through the reports and other inputs received by him from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that a person is to be placed under preventive detention.
“It is, thus, for detaining authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of order of preventive detention. The grounds of detention, in the present case, would show that it is a verbatim copy of Dossier of Senior Superintendent of Police, submitted by him to the concerned Magistrate”, the judge observed.
“The detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act”, he remarked.
“…The order of detention, for the said reasons, exhibits total non-application of mind on the part of detaining authority and, therefore, detention order is liable to be quashed”, directed Justice Rabstan.
Jail superintendent concerned was directed to release Mudasir the auto driver forthwith, unless required in any other case.