The High Court of Jammu & Kashmir and Ladakh has quashed a preventive detention order issued under the J&K Public Safety Act, 1978, citing a clear non-application of mind by the detaining authority. The court found that the grounds of detention were based on a case of mistaken identity, where the detenue was detained based on material related to another individual with a similar name.
The judgment was delivered by Justice Moksha Khajuria Kazmi on a habeas corpus petition filed on behalf of Imtiyaz Ahmad Ganie, who was detained by order of the District Magistrate, Anantnag, on April 20, 2024.
Background of the Case
The petitioner, Imtiyaz Ahmad Ganie, son of Ab Majeed Ganie, was detained under Order No.13/DMA/PSA/DET/2024 on the grounds that he was acting in a manner prejudicial to the maintenance of the security of the Union Territory of J&K. According to the petition, the detenue was arrested by Police Station Anantnag on April 15, 2024, and subsequently moved to Central Jail, Kot Bhalwal, Jammu.
The petitioner challenged the detention order, arguing that the detenue was a “peace-loving citizen” and that the order suffered from non-application of mind, failure to provide the material relied upon, non-adherence to procedural safeguards, and that the allegations had no connection to the detenue.
Arguments of the Parties
The respondents, representing the Union Territory of J&K, filed a counter-affidavit contending that the detention was justified. They stated that the detenue’s apprehension was linked to the investigation of FIR No. 49/2024, registered under the Unlawful Activities (Prevention) Act, Arms Act, and Explosive Substances Act. This FIR pertained to the arrest of a “hybrid terrorist of the JeM outfit” on March 24, 2024. The respondents claimed that the detenue was an Over Ground Worker (OGW) involved in anti-national activities and that the detaining authority was satisfied about the need for preventive detention to prevent him from spreading terror activities, particularly during the then-forthcoming General Elections. They asserted that all statutory and constitutional safeguards were followed.
Court’s Analysis and Findings
Justice Moksha Khajuria Kazmi, upon perusing the detention record, identified a critical flaw in the grounds of detention. The court noted that the material which formed the basis of the detention order referred to a different individual.
The judgment extracted a key paragraph from the grounds of detention which stated:
“Among other OGWs and suspected persons Imtiyaz Ahmad Wani S/O Late Ama Wani R/O Cheer Pora Uttersoo Shangus Anantnag was also apprehended by Police Anantnag, in the investigation of instant case, who was questioned thoroughly and tactfully… Although the evidence collected against the individual is not sufficient to the extent to book him in the case under substantive laws but his involvement in the case cannot be ruled out at the first sight.”
The High Court observed that this record suggested a case of mistaken identity, as the detenue is Imtiyaz Ahmad Ganie, not Imtiyaz Ahmad Wani. The court concluded that “the detaining authority has failed to apply its mind to the material placed before it while passing the impugned order, and such lapse goes to the very root of the impugned order.”
The court found no justification for this discrepancy in the respondents’ counter-affidavit. In a strongly worded observation, the court stated:
“The detaining authority is shamelessly trying support for the issuance of the impugned order from material which does not speak of the involvement of the detenue in a case which has formed basis for issuance of the impugned order, as such the foundation on the basis whereof the detenue has been implicated and detained under preventive detention has collapsed by default.”
As the petition succeeded on the ground of non-application of mind alone, the court found it unnecessary to examine the other grounds of challenge. The court cited the Supreme Court’s decision in Ameena Begum vs. State of Telangana (2023), which held that a detention order cannot be sustained if it is an outcome of non-application of mind. It also referred to Jai Singh and Ors. Vs State of Jammu and Kashmir (1985), where the Apex Court observed that trifling with the liberty of a subject in a “casual, indifferent and routine manner” is impermissible.
Decision
Concluding that the petitioner had successfully proven that the detaining authority did not apply its mind, the High Court allowed the petition. The impugned detention Order No.13/DMA/PSA/DET/2024 dated April 20, 2024, was quashed. The court directed the respondents to release the detenue, Imtiyaz Ahmad Ganie, forthwith.
