Jammu & Kashmir High Court - Srinagar Bench
Mohammad Iqbal Rather vs State Of Maharashtra And Ors. (Air 1999 ... on 9 September, 2006
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP No. 139 of 2006 Mohammad Iqbal Rather Petitioners State of J&K & anr Respondents !Mr. G. N. Shaheen, Advocate ^Mr. M. A. Wani, Advocate Honble Mr. Justice Mansoor Ahmad Mir, Judge Date: 09/09/2006 :J U D G M E N T:
Subject, Mohammad Iqbal Rather S/O Abdul Gani Rather R/O Edipora Bombay Sopore, through his father, Abdul Gani Rather, seeks to quash the detention order bearing No.DMB/PSA/42 of 2005 dated 23.01.2006, passed by respondent No. 2, District Magistrate, Budgam, in exercise of powers in terms of Section 8 of Jammu & Kashmir Public Safety Act, 1978, whereby the detenue stands detained and lodged in Sub-Jail Kote-Bhalwal on various grounds taken in the memo of petition.
Respondents have filee counter.
Heard. Perused. Considered.
It appears that the impugned detention order came to be passed on 23.01.2006 whereas the same came to be executed on 09.02.2006, thus delay has crept in execution of the detention which is violative of the provisions contained under the Public Safety Act.
It is averred in the petition that copies of FIR, seizure memo, grounds of detention and detention order were not supplied to the detenue. There is nothing available on the file suggesting the fact that such material was supplied to the detenue in order to make an effective representation. Thus, on this count, the detention order is bad.
In Sophia Ghulam Mohammad Bham vs. State of Maharashtra and Ors. (AIR 1999 SC.3051), the Apex Court has observed as under;-
The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained in his own language There is also nothing on the file suggesting the fact that notice was served upon the detenue for making a representation in terms of the provisions contained under the Jammu & Kashmir Public Safety Act.
It appears that while passing the detention order, the detaining authority has not spelled out the compelling reasons for detaining the detenue in preventive detention. Thus, on this ground the detention order needs to be quashed.
The Apex Court in a judgment reported in AIR 1995 SCW 1841 has held as under;- When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority awareness of the fact that the detenue was in judicial custody at the time of making the order of detention the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averments made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder cannot be said to be proper and justified.
In another case Amrit Lal and others v/s Union of India reported in (2001)1 SCC 341 their Lordshisps of the Supreme Court observed;-
6. The requirement as noticed above in Binod Singh case that there is likelihood of the petitioners being released on bail however is not available in the reasoning as provided by the Officer concerned. The reasoning available is the likelihood of his moving application for bail which is different from likelihood to be released on bail. This reasoning, in our view, is not sufficient compliance with the requirements as laid down. In the grounds of detention it is specifically pleaded that the activities of the detenue came to halt in November 2005, when he came to be arrested and was in custody till passing of the detention order. It is profitable to reproduce the relevant portion of grounds of detention, herein, which reads as under:
Whereas, your activities came to a halt when you were arrested on 0.11.2005 from Rawatpora area.... In the given circumstances what was the need to detain the detenue in terms of provisions under Public Safety Act is best known to the detaining authority. Viewed thus, detention order suffers from non-application of mind.
In view of the above discussion, it is hereby held that detention order merits to be quashed. Accordingly, the petition is allowed. The detention order is, hereby, quashed with the command to the State to release the detenue forthwith provided he is not required in any other case.
Registry is directed to return the record of the case to Mr. M. A. Beigh, Dy. AG.
Srinagar (Mansoor Ahmad Mir) 09-09-2006 Judge AQ