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If an order is not final it is not an impugned order unless it is is challenged: High Court Of Jammu and Kashmir

The impugned order has been passed without proper application of mind and also detention order was not provided within the statutory period. and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE ALI MOHAMMAD MAGREY, in the matter Adil Yasin Mir vs. Union Territory of JK and dealt with an issue mentioned above.

 Adil Yasin Mir son of Mohammad Yasin Mir, through his father, seeks to quash detention order no. 14/DMP/PSA/20 dated 07.07.2020 purporting to have been passed by District Magistrate.

The petitioner challenged the order of detention on the following grounds and few are as follows:

  • That no compelling reason or circumstance was disclosed in the order or grounds of detention to take the petitioner in preventive detention, more so because as on the date of passing of the aforesaid order of detention, the petitioner was already in custody
  • That the petitioner has not been provided with the material forming basis of the detention order, to make an effective representation against his detention order;
  • That the impugned order has been passed without proper application of mind.
  • That the detention order was not provided to the petitioner within the statutory period

Respondents filed a counter affidavit wherein they submitted that the detention order is well-founded in fact and law and seeks dismissal of the Heabus Corpus Petition, Meanwhile The learned counsel for the petitioner as well as the learned counsel for the respondents perused the writ records as also the detention record produced by the learned counsel for the respondents.

Later Learned counsel for the petitioner has submitted that the grounds taken in the detention order and the material referred to and relied on upon has no relevance because the detenu was in custody, despite bail granted by the competent court of law, therefore, there is no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. Learned counsel for the petitioner also mentioned a few things to strengthen his submission referred to and relied upon (2006) 2 Supreme Court Cases 664 titled T. V Saravanan Alias S.A.R Prasanna v. State through Secretary and anr.

Few other cases  were also referred and one among them ;

In Ibrahim Ahmad Batti v. the State of Gujarat, (1982) 3 SCC 440, the Apex Court, relying on its earlier judgments in Khudiram Das v State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531.

According to non-communication of the grounds of detention is concerned, the perusal of the file reveals, that there is nothing to show or suggest that the grounds of detention couched in the English language were explained to the petitioner in a language understood by him, as there is no material to that effect on record. This according to the view taken by Hon’ble Apex Court in “LallubhaiJogibhai Patel v. Union of India, (1981) 2 SCC 427”; the petitioner did not know English, while the grounds of detention were drawn up in English.

Examining the present case on the touchstone of the above-settled position of law and perusal of record, the petitioner was not supplied the materials relied upon by the detaining authority. The petitioner was provided material in the shape of grounds of detention with no other material/documents, as referred to in the order of detention

The court perused the facts and argument’s presented, it thought that-“Accordingly, the detention order No. 14/DMP/PSA/20 dated 07.07.2020 is quashed and the detenu, Adil Yasin Mir son of Mohammad Yasin Mir R/o Arihal, Tehsil Pulwama, District Pulwama is directed to be released from preventive custody forthwith. No order as to costs. Disposed of”.

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Judgment Reviewed by: Mandira BS

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