Court said detaining authority has failed to apply its mind while passing the order in an FIR where the detenue has already been bailed out
Srinagar: The High Court of J&K and Ladakh on Thursday overturned the detention order of an alleged drug peddler citing that the detaining authority has failed to apply it’s mind while passing the order in an FIR where the detenue has already been bailed out.
Justice Moksha Khajuria Kazmi while hearing the counsels noted that it appears from the perusal of the record that the detenue was involved in case FIR No. 168/2023 of Police Station Baramulla wherein he has been bailed out by the Court of 1st Additional Session Judge, Baramulla on 20, September2023.
She also recorded that it does not come to fore as to whether the detenue after having been bailed out has again been involved in the alleged drug peddling activities which would provide respondents reason to resort to the preventive measures in addition to the commencement of the substantive criminal proceedings against the detenue.
“All this goes on to show that the counsel for the petitioner is quite justified in submitting that there is non-application of mind on the part of detaining authority to detain the detenue for his involvement in case FIR No. 168/2023 of Police Station Baramulla for which he is already bailed out,” Court said.
Court also recorded that the contention of the counsel for the petitioner that the detenue has not been provided the entire material thereby depriving him to move a representation against his detention cannot be accepted as the respondents have sufficiently shown by the records that the detenue was furnished the documents containing as many as 18 leaves.
However, this Court does not have any reason to dispute the contention of the petitioner that the representation moved by the detenue, as is indicated by the receipt dated 6th March, 2024 placed on record, against his detention was not considered as the respondents have only stated that no representation was moved by the detenue,but nothing has been said with respect to the receipt of representation placed on record by the petitioner.
Justice Kazmi while giving references to High Court and Supreme Court directives said that the instant case is on a higher pedestal of violation as the respondents have not decided the representation of the detenue at all, not to speak of a delayed dispatch.
“In that view of the matter, the gravity of the inaction in the instant case is much higher certainly amounting to prejudicing the rights of the detenue with impunity,” Court said.
Court said it is of the considered view that the safeguards provided by the statute have not been complied with in the instant case and the detenue resultantly has been deprived of his right to seek consideration of his representation.
“The order bearing order No. DIVCOM-K/04/2024 dated 27 January 2024, in terms whereof the detenue Shahid Manzoor Dar S/o Manzoor Ahmad Dar R/o Mohalla Mir Sahib District Baramulla has been detained is quashed and the detenu is directed to be released from the preventive custody forthwith, if not required in any other case,” Court said and directed.