"Detention order vitiated by non-application of mind;" Jammu & Kashmir HC quashes preventive detention of Jamaat-e-Islami Chief Hameed Ganie

The Jammu and Kashmir High Court has quashed the preventive detention of Jamaat-e-Islami Chief, Hameed Ganie, who was detained on the orders of the District Magistrate, Budgam in March 2019 (Hameed Ganie V/s Sate of J&K and another)..A Division Bench of Justices Sanjeev Kumar and Rajnesh Oswal found that the detention order was passed without proper application of mind by the detaining authority. ."Subjective satisfaction without taking relevant material into consideration and non-application of mind by the Detaining Authority are the grounds that go to the root of the detention and vitiate it ab initio. The order of detention is clearly vitiated by total non-application of mind by the Detaining Authority," the Court ruled..Earlier a single judge of the High Court had dismissed a petition challenging Ganie's detention filed through his son. The Division Bench has now set aside this single judge verdict on appeal..The Jamaat-e-Islami "Ameer" (Chief) had two FIRs lodged against him under the Unlawful Activities Prevention Act (UAPA), one dating back to 2009 and another from 2019. Ganie was arrested on February 22, 2019, after the Centre banned the Jamaat-e-Islami that year. He was granted bail on March 9 that year but was again arrested immediately thereafter. .On Ganie's behalf, it was submitted that while he was still in police custody, the detention order was passed on March 20, 2019, pursuant to which he was detained on March 24, 2019. .The Jammu and Kashmir Government had opposed the plea to quash the detention order on the ground that Ganie was propagating the ideology of the banned Jamat-e-Islami and had taken over the rein of the organization as its “Ameer”. .His aim was to spread and deepen the ideology of the organization and work towards bringing about the secession of Jammu and Kashmir from India and its consequent merger with Pakistan, the Court was told. .It was, therefore, the government's case that since the activities of the detenue were highly prejudicial to the security of the State, it was imperative to keep him under preventive detention, so as to prevent him from indulging in his nefarious and anti-national activities..While quashing this detention order, the High Court has noted that neither the police dossier nor the grounds for his detention contained "any whisper as to whether the appellant was ever arrested in the aforesaid FIR/FIRs.".Importantly, the Court noted that the the detaining authority had passed the detention order without properly applying his mind. "There is no awareness shown by the Detaining Authority with regard to the status of the appellant, who is accused in FIR No.42/2009 under Sections 10, 11 & 13 of ULA (P) Act. The Detaining Authority has also not indicated any reason as to why the substantive laws of the State were not sufficient to deter the appellant from pursuing his activities aimed at destabilizing the State and thereby threatening its security," the judgment said. .The Division Bench effectively ruled that the nature of the allegations would not justify laxity in adhering to the law on the part of the authorities. .“No doubt, allegations against the appellant, as narrated in the grounds of detention, may justify his detention under preventive custody, so as to prevent him from acting in any manner prejudicial to the security of the State, but the preventive detention law, which provides for depriving a citizen of his liberty without putting him to trial is required to be adhered to scrupulously," the Court said. .The State authorities were, therefore, directed to release Ganie forthwith if his custody is not required in any other case..Senior advocate ZA Shah and Advocate A Hanan appeared on behalf of Ganie, while AAG BA Dar appeared for the government authorities. .[Read Judgment]