While quashing a preventive detention order, the Jammu and Kashmir and Ladakh High Court in a most learned, laudable, landmark, logical and latest judgment titled Tawqeer Ahmad Wani Vs UT of J&K in WP(Crl) No.456/2022 and cited in 2023 LiveLaw (JKL) 30 that was reserved on February 2, 2023 and then finally pronounced on February 17, 2023 has minced just no words to clearly state that the investigating agency has no role in the formulation of the grounds of detention of a detenue as the same is a prerogative of the detaining authority.

It must be mentioned here that the Single Judge Bench of Hon’ble Mr Justice Vinod Chatterji Koul maintained forthrightly stating that:
Detaining authority may get inputs from different agencies, including Superintendent of Police concerned, but responsibility to formulate grounds of detention exclusively rests with detaining authority. We thus see that ultimately the Bench quashed the detention order and also directed the respondents to release the detenue forthwith, provided he is not required in any other case. Very rightly so.

At the very outset, this remarkable, robust, refreshing, rational and recent judgment authored by the Single Judge Bench of Hon’ble Mr Justice Vinod Chatterji Koul of Jammu and Kashmir and Ladakh High Court at Srinagar sets the ball rolling and puts things in perspective by first and foremost putting forth in para 1 that:
Through the medium of this writ petition, the petitioner prays for quashment of detention Order No.37/DMK/PSA/2022 dated 20.06.2022, passed by District Magistrate, Kulgam, whereby detenu, namely, Tawqeer Ahmad Wani S/o Ab. Gani Wani R/o Palpora Frisal District, has been placed under preventive detention with a view to prevent him from acting in a manner prejudicial to the security sovereignty and integrity of State, and directing his lodgement in Central Jail, Kotbhalwal Jammu on the following grounds:

1. That the allegations made in the grounds of detention are vague and non-existent and detaining authority has not followed constitutional and statutory procedural safeguards as provided under Article 22 (5) of the Constitution of India;
    
2. that the detenu has never associated himself with any terrorist organization and has also no connection with any terrorist organization and he has never acted on the directions and signals of any persons whether inside or outside the Union Territory and that the detenu has never provided any logistic support or transported any arms of any person from one place to another and the detenu is not an OGW and is not in touch with any organization.
    
3. that the material provided in support of order of detention of FIR registered in Police Station Yaripora against detenu way back in the year 2020 and that grounds of detention are remote in time and nature and have no proximity and live nexus with the requirement for detention of detenu.
    
4. that the last alleged activity against the detenu is of year 2020 and the detention order has been passed in the year 2022 on the basis of the past alleged activity, as such, there is delay of more than two year in passing the detention order.
    
5. that the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite for him before passing any detention order which clearly depicts the non application of mind on the part of detaining authority.
    
6. that grounds of detention do not disclose any activity on the basis whereof order of detention can be passed and it appears that impugned detention order has been passed against detenu due to mistaken identity and misinformation;
    
7. that detaining authority has not assigned any compelling and cogent reason for passing order of detention.

As it turned out, the Bench then discloses in para 2 of this noteworthy judgment that:
Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are prejudicial to the security, sovereignty and integrity of the State, and that the activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant.

Needless to say, the Bench then states in para 3 of this commendable judgment that:
I have heard learned counsel for the parties and considered the matter. I have gone through the detention record produced by counsel for respondents.

As we see, the Bench then points out aptly in para 4 of this notable judgment stating that:
Though various submissions have been made by counsel for petitioner, yet an important aspect of the matter has been brought by him before this Court during the course of advancement of arguments. He has invited attention of this Court to impugned order of detention, particularly first line thereof and thus, it would be advantageous to reproduce the same hereunder: Whereas, on the basis of grounds of detention placed before me by the Superintendent of Police Kulgam……

As a corollary, the Bench then propounds in para 5 of this learned judgment specifying that:
From the above, it is interestingly evident that detaining authority has said that it is on the basis of grounds of detention placed before him by the Superintendent of Police Kulgam that detaining authority is satisfied to place detenu under preventive detention.

Most significantly, most forthrightly and also most remarkably, it would be germane to note that the Bench then minces absolutely no words to mandate in para 6 holding that:
It is important to mention here that detaining authority may get inputs from different agencies, including Superintendent of Police concerned, but responsibility to formulate grounds of detention exclusively rests with detaining authority. It is the detaining authority, who has to go through 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, therefore, for detaining authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of order of preventive detention. However, in the instant case, it is evident from impugned order of detention that grounds of detention have not been prepared by detaining authority and resultantly impugned detention order is vitiated.

Finally, the Bench then concludes by holding in para 7 of this laudable judgment that:
Based on the above discussion, the instant petition is disposed of and Detention Order No. 37/DMK/PSA/2022 dated 20.06.2022, issued against the detenu is quashed. Respondents, including Jail Superintendent concerned, are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.

In a nutshell, we thus see that the Jammu and Kashmir and Ladakh High Court has very brilliantly, boldly and in a much balanced manner struck the right chord in holding that the detaining authority has exclusive responsibility to formulate the grounds of detention. It is also made clear by the Court that the investigating agency can only give inputs. In this leading case we see that the grounds of detention have not been prepared by the detaining authority and resultantly we see that the Court holds that the impugned detention order is vitiated as discussed in detail hereinabove! Due to this we see that the detenu is thus directed most commendably by the Bench to be released forthwith if he is not required in any other case! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh