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HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

LPA No. 69/2022

LPA No. 76/2022

Reserved on: 30.11.2022

Pronounced on: 26.12.2022
LPA No.69/2022
Mohd. Yousuf
LPA NO.76/2022
Mohd. Aslam
…Appellant(s)

Through: Mr.P.N.Raina, Sr. Advocate with

Mr. M.A. Bhat, Advocate
Vs.
Union Territory of J&K & Ors
…Respondent(s)
Through: Mr.Amit Gupta, AAG

CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

HON’BLE MR. JUSTICE M.A.CHOWDHARY, JUDGE

JUDGMENT
Per Chowdhary J.

1. The present appeals have been preferred by the

appellants against the judgment dated: 12.07.2022

passed in WP (Crl) No. 02/2022 by Learned Single

Judge. The facts and circumstances of the above said

appeals are identical in nature, therefore, both are

proposed to be disposed of by this common judgment.

2. Aggrieved of the order/judgment dated 12.07.2022

passed by the Writ Court ( hereinafter called „impugned

Judgment‟) appellant Mohd. Yousuf and his brother

Mohd. Aslam filed a joint Letters Patent Appeal (LPA

No.69/2022) seeking setting aside the impugned

judgment. However, later the appellant Mohd. Aslam

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moved an application ( CM No. 4389/2022) seeking

withdrawal from the appeal and vide interim order

dated: 25.7.2022 passed by this Bench the appeal to his

extent, was dismissed as withdrawn on his behalf with

liberty to file a separate fresh appeal after seeking leave

of this Court to file the same.

3. In LPA No. 69/2022 it has been prayed to set aside the

judgment dated 12.07.2022 passed by Learned Single

Bench whereby petition for quashment of detention

order was dismissed with a further direction to the

Director Anti Corruption Bureau Union Territory of J&K

to enquire into the matter for having obtained

documents not by legitimate means. It has been further

prayed to quash the detention order No. 02/2022 dated

11.01.2022 which was subject matter of writ petition.

4. In LPA No. 76/2022 the appellant seeks setting aside

the directions passed by Learned Single Judge to the

Anti Corruption Bureau of UT of J&K to enquire into the

issue of procurement of the order of detention and

communications addressed to the petitioner in the writ

petition and to the Principal Secretary to Govt. Home

Department with regard to alleged connivance of the

officials of the respondents and the appellant who had

filed the petition on behalf of his brother. It has been

further prayed to set aside/expunge/remove the

observations made in the judgment against the

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appellant, being unwarranted, unjustified and uncalled

for and also being violative of principles of natural

justice.

5. Factual Matrix of the case is that one Mohd. Yousuf @

Shama S/O Faqar Din R/O Village Narwal BalaJammu,

( hereinafter called appellant Mohd. Yousuf ) was

ordered to be detained in terms of Section 8(1) (a) of

J&K Public Safety Act, 1978, by the District Magistrate

Jammu ( hereinafter called „Detaining Authority‟ for

short) vide his Order No. 2 of 2022 dated 11.01.2022

(hereinafter called „detention order‟) .

6. Before the Order could be executed, the appellant Mohd.

Yousuf filed criminal writ petition before this court

through his brother namely Mohd. Aslam seeking

quashment of the detention order passed by detaining

authority. WP (Crl) No. 02/2022 was decided by the Writ

Court vide judgment dated 12.07.2022 and rejected the

plea raised by the appellant for quashment of the

detention order mainly on the points that a person

whose preventive detention has been ordered, without

execution of the same, cannot file the petition that too

through a stranger as he himself is required to file the

same. The learned Single Judge held that the petition

filed by the brother of the petitioner seeking „writ of

certiorari‟ cannot be maintained on behalf of the person

who has been ordered to be detained and who was

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evading the process of law, without being properly

authorized. It was also observed by the writ Court that

the detention order and communication dated

11.01.2022 addressed to the person whose detention

ordered and the Principal Secretary to Govt. Home

Department by the Detaining Authority had been placed

on record by the brother of the petitioner and the Court

is at a loss as to how the order of detention as also

communication landed in the hands of the petitioner or

his brother without there being any execution of the

said detention order as there was no pleading with

regard to the fact as to how the detention order and

other communication were obtained by any legitimate

means, such as, under Right to Information Act etc. The

Writ Court observing that it was a serious matter as the

same surely points to the connivance of the officials at

the respondents‟ end, either with the petitioner or his

brother and the Writ Court directed the Anti Corruption

Bureau (ACB), Union Territory of J&K to enquire the

issue with regard to the connivance of the officials of the

respondents with regard to the fact as to how these

documents landed with the petitioner or his brother

without execution of the detention order and if prima-

facie found to be involved in the acts of

Omission/Commission amounting to offence, then to

investigate by registering FIR against all the involved

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persons. Writ Court making elaborate discussion

holding that the petition had no merit dismissed the

same.

7. Learned counsel for the appellant submits that writ

petition has been dismissed mainly on the ground that

the appellant Mohd Yousuf @ Shama had not filed the

writ petition himself but through his brother appellant

Mohd. Aslam without there being any proper

authorization and that the appellant-petitioner is

avoiding the process of law. The writ Court has

completely erred in dismissing the writ petition on this

ground. The Writ Court has completely skipped to note

the facts of the case referred to in the judgment titled

Additional Chief Secretary to Govt. & Ors. Vs. Alka

Subash Gadia & Ors.wherein it has been held that the

original writ petition before Hon‟ble High Court and the

subsequent proceedings before Apex Court have all

along been contested by the wife of the person against

whom the order was passed because he was not

available at the time of filing the writ petition. The facts

of that case are similar to the present appeal(s) because

writ petitioner was not available in the Union territory at

the time of filing of the writ petition so the writ petition

of the appellant Mohd. Yousuf could not have been

dismissed on this ground and even in Habeas Corpus

matters the law is very clear that the writ petition can
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be filed through any relative on behalf of the person

against whom the order of detention was passed if the

detenue is not available for signing the writ petition,

Vakalatnama, or other proceedings thus the judgment

impugned is liable to be set aside.

8. Learned counsel for the appellant(s) further submits

that the impugned judgment is not sustainable on the

touch stone of the established law on the

maintainability of writ petition against the detention

order at the pre-execution stage and also filing of the

petition through next kith and kin and is thus liable to

be set aside. It is further argued by the learned counsel

for the appellants that the observations made by learned

Single Judge that since the appellant is avoiding process

of law and that can be ground for declining for

indulgence at this stage by this Hon‟ble Court is not

only unreasonable but is also not in accordance of law.

Challenging the detention order at the pre-execution

stage is not alien to the judicial proceedings/writ

petition. The law on the subject is very clear and even

some of the judgments have been even discussed by the

learned Single Judge, therefore, every person who is

sought to be detained under any detention law, has a

chance to challenge the same at the pre-execution stage

of course on the limited grounds as enumerated by

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Hon‟ble Apex Court in various pronouncements and by

the High Courts of the Country.

9. It is submitted by learned counsel for the appellant(s)

that the learned Single Judge while dismissing the writ

petition has passed certain direction to the Anti

Corruption Bureau J&K, on the issue of the availability

of copy of the detention order to the appellants at pre-

execution stage. The direction is unwarranted and

beyond the scope and domain of the Court. The learned

Single Judge has not sought any explanation/reply from

the appellants herein as to how the copy of the order

came in their possession. The learned Single Judge

ought not to have made such directions, with serious

criminal consequences against the appellants herein

which, if allowed to stand, will result in harassment to

them at the hands of the police and even the arrest for

none of their fault or any such act which could be

termed as criminal in nature. The case of the appellant

was well within those grounds which have been

enumerated by Hon‟ble Supreme Court for challenging a

detention order at the pre-execution stage so his

detention is totally unwarranted and uncalled for and

the detention order is liable to be quashed.

10. Learned counsel for the appellants further submits

that the detention order has been passed on 11.01.2022

and the communication has also been addressed to the

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appellant Mohd. Yousuf on the same day but the said

detention order has remained unserved and unexecuted

up to 26th of January, 2022 when he had gone out of the

Union Territory to Ajmer Sharief Dargah. There is no

explanation on behalf of the respondent nos.2 & 3, as to

why, the order was not executed from 11.01.2022 till

24th of January, 2022. The appellant Mohd. Yousuf had

thereafter gone outside Union Territory and thus it

cannot be said that he has been avoiding the process of

law. The appellant Mohd. Aslam herein has filed the writ

petition in good faith and on the legal advice of the

counsel and got copies of detention order and other

documents from the police personnel. The directions

passed to the Anti Corruption Bureau are totally

unwarranted and uncalled for, which may result into

their harassment and even arrest though they have not

committed any such act which could be an offence

punishable under the provisions of the Prevention of

Corruption Act.

11. The case set up is that a bare perusal of the

detention order impugned makes it clear that the same

has been passed by the respondent no.2 in an

unreasonable, arbitrary and malafide manner only with

an intention to cause undue inconvenience and

harassment to the petitioner-appellant. The detention

order was issued on vague, extraneous and irrelevant

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grounds. It needs to be emphasized that the last FIR

which was registered against the petitioner-appellant in

the year 2018 i.e. more than three years back also

stands stayed by this Hon‟ble Court, therefore, in the

year 2022, petitioner cannot be booked under the J&K

Public Safety Act, 1978. All the FIRs are old and have

lost utility and cannot form basis of any order under the

Public Safety Act. On this ground also, the order

impugned requires to be quashed.

12. It is further argued that the respondent no.2 has

failed to record its subjective satisfaction that the

activities of the petitioner are prejudicial and

detrimental to the maintenance of public order. The

detention order suffers from non-application of mind

and is liable to be quashed.

13. On the other hand, Mr. Amit Gupta, AAG learned

counsel for the respondents made submissions at bar

that the dossier was submitted by the respondent No.3

recommending the detention of the petitioner as he is a

desperate character and is habitual of indulging in acts

of violence, such as, attempt to murder, assault, land

grabbing etc and is also a history sheeter in Bundle-A

activities of serious and heinous in nature by using

dangerous weapons over a period of time and has

spread a reign of terror amongst the peace loving people

of the area and his anti-social activities are prejudicial

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to the maintenance of public order. It is also stated that

number of FIRs have been registered against the

petitioner/appellant and he is indulging himself

repeatedly in commission of offences, as substantive

laws have not proved to prevent him, as such, the

impugned order has been passed. It is further stated

that the petitioner/appellant is an absconder, and he

has been intentionally avoiding the execution of

detention order. Learned Counsel for the respondents

vehemently resisted the present appeals and submits

that the order of detention cannot be interfered at pre-

execution stage lightly and particularly when the

petitioner- appellant has absconded. He also laid stress

that the brother of the appellant No.1 has obtained the

order of detention by illegal means and it clearly shows

the clout of the appellant(s).

14. Heard and considered.

15. On perusal of the impugned judgment it is found that

the Learned Single Judge has proceeded in the matter

primarily on the two aspects of the case only, firstly that

the petition was not a Habeas Corpus Petition as the

person ordered to be detained was not in custody and

instead of filing the petition himself, his brother filed a

petition which was a Writ of Certiorari and secondly;

that the documents placed on record having been issued

from the office of detaining authority had not been

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procured by legitimate methods and there was

connivance of the official of the detaining authority and

the appellants herein.

16. The first contention with regard to the fact whether

the brother of the person who was ordered to be

detained can file a Habeas Corpus Petition on his behalf

or not and whether a relief in the nature of writ of

certiorari can be issued on a subject of Habeas Corpus.

This aspect of the matter is no longer rest-integra as

Hon‟ble Supreme Court has decided this issue in many

of its judgment.

17. In a case titled “Additional Secretary to the

Government of India & Ors. Vs. Smt. Alka Subash

Gadia & Anr”, reported as 1992 SCC Supl.(1) 496 it

was held that the powers under Articles 226 and 32 are

wide and are untrammeled by any external restrictions

and can reach any executive order resulting in civil or

criminal consequences. However, the Courts have over

the years evolved certain self-restraints for exercising

these powers. They have done so in the interests of the

administration of justice and for better and more

efficient and informed exercise of the said powers. These

self-imposed restraints are not confined to the review of

the orders passed under detention law only. They

extend to the orders passed and decisions made under

all laws. It is in pursuance of this self-evolved judicial

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policy and in conformity with the self-imposed internal

restrictions that the courts insist that the aggrieved

person first allow the due operation and implementation

of the concerned law and exhaust the remedies provided

by it before approaching the High Court and this Court

to invoke their discretionary extraordinary and equitable

jurisdiction under Articles 226 and 32 respectively. That

jurisdiction by its very nature is to be used sparingly

and in circumstances where no other efficacious remedy

is available. If in every case a detenu is permitted to

challenge and seek the stay of the operation of the order

before it is executed, the very purpose of the order and

of the law under which it is made will be frustrated

since such orders are in operation only for a limited

period. The courts have the necessary power to

entertain grievances against any detention order

prior to its execution and they have used it in

proper cases, although such cases have been few and

the grounds on which the courts have interfered

with them are necessarily very limited in scope and

number, viz., where the courts are prima facie

satisfied (i) that the order is not passed under the

Act under which it is purported to have been passed

(ii) that it is sought to be executed against a wrong

person. (iii) that is is passed for a wrong purpose (iv)

that it is passed on vague, extraneous and irrelevant

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grounds or (v) that the authority which passed it had

not authority to do so. It has been further held that

it is always open for the detenu or anyone on his

behalf to challenge the detention order by way of

habeas corpus petition on any ground available to

him.

18. The Hon‟ble Apex Court in case titled “Deepak Bajaj

vs. State of Maharashtra and Anr.” reported as 2009

ALL SCR 105 with regard to challenge to the detention

order before its execution held in para 28 as under :

“Learned counsel for the respondent submitted that

a writ of habeas corpus lies only when there is
illegal detention, and in the present case since the
petitioner has not yet been arrested, no writ of
habeas corpus can be issued. We regret we cannot
agree, and that for two reasons. Firstly, Article 226
and Article 32 of the Constitution permit the High
Court and the Supreme Court to not only issue the
writs which were traditionally issued by British
Courts but these Articles give much wider powers
to this Court and the High Court. This is because
Article 32 and Article 226 state that the Supreme
Court and High Court can issue writs in the nature
of habeas corpus, mandamus, certiorari, etc. and
they can also issue orders and directions apart
from issuing writs. The words 'in the nature of'
imply that the powers of this Court or the High
Court are not subject to the traditional restrictions
on the powers of the British Courts to issue writs.
Thus the powers of this Court and the High Court
are much wider than those of the British Courts
vide Dwarka Nath Vs. Income-tax Officer, Special
Circle, D Ward, Kanpur &Anr., AIR 1966 SC 81
(vide para 4), Shri. Anadi Mukta Sadguru Shree
MuktajeeVandasjiswami Suvarna Jayanti Mahotsav
Smarak Trust &Ors. Vs. V. R. Rudani&Ors., AIR
1989 SC 1607 (vide para 16 to 18), etc. Secondly,
what the petitioner really prays for is a writ in the
nature of certiorari to quash the impugned
detention order and/or a writ in the nature of
mandamus for restraining the respondents from
arresting him. Hence even if the petitioner is not in
detention a writ of certiorari and/or mandamus
can issue.”
19. In view of the law laid down by the Apex Court in

the aforestated judgments, it can safely be held that

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the writ petition of Habeas Corpus, with prayer to

issue Writ of Certiorari to quash the detention order

before its execution and also filed through the

brother of the person liable to be detained was

competent and maintainable.

20. The Hon‟ble Apex Court in a case titled “Banka

Sneha Sheela vs. The State of Telangana & ors”

reported as (2021) 9 SCC 415 held with regard to the

difference between public order and law and order. In

paras 13 and 14 of the judgment which are reproduced

as under :

"13.There can be no doubt that for „public order‟ to be

disturbed, there must in turn be public disorder.
Mere contravention of law such as indulging in
cheating or criminal breach of trust certainly affects
„law and order‟ but before it can be said to affect
„public order‟, it must affect the community or the
public at large.
14.There can be no doubt that what is alleged in the
five FIRs pertain to the realm of „law and order‟ in
that various acts of cheating are ascribed to the
Detenu which are punishable under the three
sections of the Indian Penal Code set out in the five
FIRs. A close reading of the Detention Order would
make it clear that the reason for the said Order is
not any apprehension of widespread public harm,
danger or alarm but is only because the Detenu was
successful in obtaining anticipatory bail/bail from
the Courts in each of the five FIRs. If a person is
granted anticipatory bail/bail wrongly, there are
well-known remedies in the ordinary law to take care
of the situation. The State can always appeal against
the bail order granted and/or apply for cancellation
of bail. The mere successful obtaining of anticipatory
bail/bail orders being the real ground for detaining
the Detenu, there can be no doubt that the harm,
danger or alarm or feeling of security among the
general public spoken of in Section 2(a) of the
Telangana Prevention of Dangerous Activities Act is
make believe and totally absent in the facts of the
present case.”
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21. A three Judge Bench of the Supreme Court in “Vijay

Narain Singh v. State of Bihar, reported as (1984) 3

SCC 14 held in para 32, which reads as under:

“It is well settled that the law of preventive detention is

a hard law and therefore it should be strictly
construed. Care should be taken that the liberty of a
person is not jeopardised unless his case falls
squarely within the four corners of the relevant law.
The law of preventive detention should not be used
merely to clip the wings of an accused who is
involved in a criminal prosecution. It is not intended
for the purpose of keeping a man under detention
when under ordinary criminal law it may not be
possible to resist the issue of orders of bail, unless
the material available is such as would satisfy the
requirements of the legal provisions authorising
such detention. When a person is enlarged on bail
by a competent criminal court, great caution should
be exercised in scrutinizing the validity of an order of
preventive detention which is based on the very
same charge which is to be tried by the criminal
court.”

22. Another three Judge Bench judgment of Hon‟ble

Apex Court in “Rekha v. State of Tamil Nadu”,

reported as (2011) 5 SCC 244 dealt with interplay

between Articles 21 and 22 as follows:

“13.In our opinion, Article 22(3)(b) of the

Constitution of India which permits preventive
detention is only an exception to Article 21 of the
Constitution. An exception is an exception, and
cannot ordinarily nullify the full force of the main
rule, which is the right to liberty in Article 21 of the
Constitution. Fundamental rights are meant for
protecting the civil liberties of the people, and not to
put them in jail for a long period without recourse to
a lawyer and without a trial. As observed in R. v.
Secy. of State for the Home Deptt., ex p Stafford
[(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G) . The
imposition of what is in effect a substantial term of
imprisonment by the exercise of executive discretion,
without trial, lies uneasily with ordinary concepts of
the rule of law.Article 22, hence, cannot be read in
isolation but must be read as an exception to Article
21. An exception can apply only in rare and
exceptional cases, and it cannot override the main
rule.
14. Article 21 is the most important of the
fundamental rights guaranteed by the Constitution
 P a g e | 16

of India. Liberty of a citizen is a most important right

won by our forefathers after long, historical and
arduous struggles. Our Founding Fathers realized
its value because they had seen during the freedom
struggle civil liberties of our countrymen being
trampled upon by foreigners, and that is why they
were determined that the right to individual liberty
would be placed on the highest pedestal along with
the right to life as the basic right of the people of
India.”

23. In view of the law laid down by Hon‟ble Apex Court

in the aforesaid cases it is amply clear that there is no

restriction for a person who has been ordered to be

detained under the preventive detention to file the

petition at his own, if he is not available, then the

petition can be filed by any person on his behalf on the

limited grounds available to him. It is an admitted case

that the petitioner-appellant at the time of passing of

detention order was out of UT of J&K and was not in a

position to challenge the order himself. It is also

respondents‟ case that the order of detention could not

be executed for his non-availability at his place of

residence. The writ petition filed by the appellant(s) had

been classified as a Habeas Corpus Petition under

Article 226 of the Constitution of India for the issuance

of writ of certiorari seeking quashment of the detention

order, therefore, the petition filed by the appellants was

essentially a Habeas Corpus Petition dealing with the

preventive detention.

24. The limited grounds of challenge as laid down by the

Hon‟ble Apex Court have been pleaded and argued

before the Single Bench as well as this Bench by the

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learned counsel for the appellants. The petitioner-

appellant had been shown involved in some cases of not

very serious nature and he was stated to have been

bailed out in all those cases referred and relied upon for

invoking the preventive detention by the detaining

authority. Also these cases had no proximate link to the

date of detention order, as all the FIRs right from 2008

to 2018 had been registered against the appellant-

petitioner whereas the detention order was passed in

the year 2022. The gap of three years from the last FIR

registered in the year 2018 against the appellant-

petitioner by no stretch of imagination can be said to be

proximate to the detention order. It appears that the

detaining authority has not applied its mind properly to

the facts of the case so as to reach conclusion as to

whether the preventive detention of the appellant was

required or not. None of the offences, of which the

appellant had been charged, were serious offences,

which could by any means be said to have created any

public order. The incidents of the crimes, to base the

detention were also remotely connected, with no

proximate link.

25. For what has been discussed, considered and

analyzed hereinabove, we are of the opinion that the

order of detention passed by the detaining authority was

not inconformity with the law, violating constitutional

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provisions contained in Articles 21 & 22 of the

Constitution of India.

26. Coming to the second aspect of the case that the

documents placed on record and relied upon by the

appellants having been issued from the office of

detaining authority have not been legitimately received

by the appellants, we are of the considered opinion that

no serious view should have been taken in the matter as

it was for the Writ Court to rely or not to rely on the

documents produced but should not have gone into the

aspect of the case, as to what was the source of

receiving those documents.

27. Hon‟ble Apex Court in a case titled „Umesh Kumar

v/s State of Andhra Pradesh’, reported as 2013 (10)

SCC 591 has held in para 27,as under :

“It is a settled legal proposition that even if

a document is procured by improper or
illegal means, there is no bar to its
admissibility if it is relevant and its
genuineness is proved. If the evidence is
admissible, it does not matter, how it has
been obtained. However, as a matter of
caution, the court in exercise of its
discretion may disallow certain evidence in
a criminal case if the strict rules of
admissibility would operate unfairly against
the accused. More so, the court must
conclude that it is genuine and free from
tampering or mutilation.”

28. A similar contention was raised before the Hon‟ble

Delhi High Court that the writ petitioner was guilty of

suppression of facts and had not approached that court

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with clean hands. Learned Single Judge observed that

the writ petitioner had relied upon copies of some

documents from the record of the first respondent

without disclosing their source that the said documents

were improperly and illegally obtained with the help of

some unscrupulous employees of the first respondent.

However, a Division Bench of Delhi High Court in case

titled “Backbone Tarmat-Ng Jv vs. National

Highways Authority of India, reported as 99 (2002)

DLT 862 relying upon the Apex Court judgment passed

in case titled “Magraj Patodia v. R.K.Birla & Ors.”

[1971] 2 SCR held in para 84 as under :

“ In any case having regard to the fact that the

learned Single Judge went into the merit of the
matter, heard the parties at great length, scanned
the record produced by the respondent with a
view to arrive at a decision on merits, we are of
the opinion that the writ petition ought not to
have been dismissed on this ground alone.”

29. Judicial Committee of the Privy Council in the well-

known case of Kuruma v. Reginam [1955] 1 All ER

236 held as under:

“The test to be applied both in civil and in criminal

cases, in considering whether evidence is
admissible, is whether it is relevant to the matters
in issue. If it is, it is admissible and the Court is
not concerned with how it was obtained.”

The House of Lords in a case reported as R.V.Sang

[1979] 2 All ER 1222 observed that if it is admissible

evidence probative of the accused‟s guilt it is no part

 P a g e | 20

of his judicial function to exclude it for this reason as

to how documents were obtained held as under:

“He has no discretion to refuse to admit relevant

admissible evidence on the ground that it was
obtained by improper or unfair means. The court
is not concerned with how it was obtained.”

30. The Hon‟ble Apex Court in “Magraj Patodia v.

R.K.Birla & Ors.” [1971] 2 SCR 118 held that the

fact that a document which was procured by

improper or even illegal means could not bar its

admissibility provided its relevance and genuineness

were proved. The Hon‟ble Apex Court in a case titled

“Pushpadevi M. Jatia vs. M.L.Wadhavan, & Ors”

reported as (1987) 3 SCC 367 relying upon its earlier

judgments in Magraj Patodia v. R.K.Birla & Ors.,

[1971] 2 SCR 118 and R.M.Malkani v. State of

Maharashtra [1973]2 SCR 417, held that there is a

long line of authorities to support the opinion that the

court is not concerned with how evidence is obtained.

The rule is, however, subject to an exception. In

R.K.Birla‟s case it has been held that a document

which was procured by improper or even illegal

means could not bar its admissibility provided its

relevance and genuineness were proved. In R.M.

Malkani‟s case it has been held that the court

applying this principle allowed the tape-recorded

conversation to be used as evidence in proof of a

criminal charge.
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31. In view of the law laid down by the Hon‟ble Apex

Court, that the court has to look into the veracity and

admissibility of the documents produced and relied

upon, instead of going into as to how they were

procured, we are of the opinion that the view taken by

the writ court was not the correct view to reject the

petition on the ground, that the documents had not

been legitimately obtained. Otherwise also these

documents issued by a public servant are supposed

to be in public domain. These documents were

neither classified nor relating to official secrets. The

view taken by the Writ Court is thus not sustainable.

32. For the foregoing reasons and observations made

hereinabove, we are of the considered opinion that the

order impugned in the writ petition passed by the

detaining authority was not inconformity with the

provisions of law of preventive detention. We are of the

opinion that the order impugned in the Writ Petition

was liable to be quashed by the Writ Court. The

impugned order passed by the Writ Court is thus set

aside and appeals are allowed with the following

directions:

i/ The detention Order No. 02 of 2022 dated

11.01.2022 impugned in the writ petition,

passed by the detaining authority is hereby

quashed.
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ii/ Direction passed by the Writ Court to the

Anti-Corruption Bureau to enquire into the

matter is set aside.

33. Both the appeals are disposed of as allowed. Copies

of the judgment be placed on each of the appeal file.

(MA CHOWDHARY) ( SINDHU SHARMA)

JUDGE JUDGE
Jammu
26.12.2022
Mujtaba

Whether the order is reportable: Yes / No

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