Jammu & Kashmir High Court
Mohammad Ramzan Dar vs The State And Anr. on 29 August, 1995
Equivalent citations: 1996CRILJ1029
ORDER A.B. Qadir Parray, J.
1. By this petition, detention of one Mohammad Ramzan Dar son of Abdul Khaliq Dar R/O Rehan, Sopore is being challenged.
2. Petition stands admitted to hearing on 7-10-1994 and in response to the notices, respondents' appeared and were given number of opportunities for filing counter, but they miserably failed to file any counter-affidavit. Not only that, they even did not make any records available for the perusal of the court despite directions issued on 28-7-1995. So the presumptions and conclusions which are to be drawn for non-production of records and non-filing of counter-affidavit is that the respondent/State had miserably failed to establish and show that due course of law has been followed while depriving the detenue of his liberty. Though the detenue is said to . be staunch, dedicated and active member of outlawed organisation of Hizbul Mujahideen, even then records have not been made available before this court not to speak of filing any counter-affidavit to controvert the averments made in the petition and supported by an affidavit.
3. Mr. Mustaffa, appearing for the respondent/ State submits that it was in fact on 31 -7-1995 that he had asked the concerned agency to make the records available, by addressing a letter in the name of Additional Chief Secretary, Home Department but till date he did not get any reply and feed back information. So he is not in a position to produce any records. Be that as it may be, but the fact remains that the respondent/Stale has no cheeks to face the averments and the allegations made out in the petition. Had they been fair and honest, the averments made by the petitioner should have been met and rebutted so that this court would have scrutinised the detention order on the judicial side.
4. Respondent/State is no doubt having the powers under the Statute to deprive a person/citizen of his liberty by taking resort to the provisions of Public Safety Act, whom they deem that he is dangerous to the public order or hazardous to the security of the State. But while doing so, they have to follow meticulously the Statute. The Statute does envisage certain riders. One of the riders is that after passing of order of detention, they have to serve the grounds of detention, on the detenue within five days or at the most within ten days for the reasons to be recorded in writing. Secondly the respondents have to apprise the detenue that he has a right of making a representation against his detention as envisaged under Article 22(5) of the Constitution.
5. Thirdly the case of the detenue is to be placed before the Statutory Advisory Board within four weeks from the date of execution of the order of detention. The Statutory Board has to return its finding within eight weeks after receipt of the records and reference. Statutory Advisory Board has to hear the petitioner in person or through his representation and in case the detenue wants that he be heard in person, it is the bounden duty of the respondent/ State or the detaining authority to produce him before the Statutory Advisory Board and the said Advisory Board has to return its finding regarding existence of sufficient grounds for continued detention to the Government within eight weeks and the State in turn has two options; either to detain a person for a maximum period of two years or to release the person. After receipt of the opinion of the Advisory Board in case State intends to detain the detenue for a maximum period or otherwise, the State has to pass an order in terms of sub-section (i) of Section 17 of the Public Safety Act.
6. Even after passing of the order, State has the option under sub-section (1) of Section 19 of the Public Safety Act to revoke the order at any time. So these are certain riders and if the order has been passed by District Magistrate or by Divisional Commissioner at the initial stage under sub-section (2) of Section 8 of the Public Safety Act, then in that matter, the order is to be approved by the Government under sub-section (4) of Section 8 of the Act within 12 days, failing which order loses its force. That being so, the averments made in the petition are almost the same which are being raised in such petitions by the petitioners and all these averments have remained unrebutted, the sum and substance of which is that the Respondent/State while depriving the detenue alleged to be staunch and dedicated member of out-lawed organization of Hizbul Mujahideen have remained unrebutted.
7. The Court while examining the whole matter and without being provided the records has not to conclude that the respondent/State has not followed due course of law while depriving the detenu of his liberty and as such, the order of detention bearing No. 161 of 1994 dated 25-8-1994 cannot stand judicial scrutiny.
8. For the foregoing reasons, this petition is allowed and the order of detention passed against the detenue under No. 161 of 1994 dated 25-8-1994 is quashed and the respondents are directed that they shall release the detenue forthwith from preventive detention under the aforesaid order, unless otherwise required in any substantive offence. Petition is disposed of accordingly.