RUSTUM WANI Vs. STATE

JUDGEMENT

(1.) THE detenue Rustum Wani in HCP No. 232/2000 and Ghulam Mohammad Bhat detenue in HCP No. 233/2000 seek to quash the detention order No. 43 -DMP/2000 dated: 03 -08 -2000 and No. 41 -DMP of 2000 dated: 03 -08 -2000 respectively, passed by the District Magistrate. Pulwama, respondent No.

(2.) , in exercise of his powers under Section 8 of the J&K Public Safety Act. 1978 thereinafter called the "Act") directing the preventive detention of the detenues. The period of detention has been fixed by the Govt. invoking its power under Section 18 of the Act, for 24 months. 2. These two petitioners being common on facts and law are disposed of by this common order. Respondents have directed the preventive detention of the detenues on the grounds that they are the members of Hizbul Mujahideen organisation which outfit is working for destabilizing the Government duly established by law and aided by ISI of Pakistan. Detenues have received the training in handling of sophisticated arms especially in grenade lobbing. They have been assigned the task of arranging money to carry out the subversive activities by the terrorists. To arrange money and to comply the orders of militant leaders, they kept close nexus with the timber smugglers of Pirpanchal Division and in short span of time they became notorious timber smugglers. They are involved in timber smuggling and the money so earned by selling illicit timber was spent to carry out the subversive activities in the areas falling within the jurisdiction of P/S Rajpur/Shopian. They are working for the outfit as upper ground workers, arranging food and shelter and harbourer of militants. They are also assigned the task to guide foreign mercenaries and motivating teen aged boys to participate in militancy. They motivate youngsters and sent them abroad to receive weaponry training. They have turned to be notorious timber smugglers, dacoit, rapist, of the Kellar area. They have no respect for the law of the land which they violate blatantly with impunity. Detenues were arrested on 23rd July, 2000 by Police Station Rajpur. One A.K. Mag. and 15 live round of A.K. Riffle were recovered from the possession of Rustum Wani and he was booked in FIR No. 95/2000 under section 7/25 I. A. Act in P/S Rajpur. One hand grenade was recovered from the possession of Ghulam Mohammad Bhat and FIR No. 94/2K under section 7/25 of I. A. Act have been registered against him in Police Station Rajpur. Their activities have been found prejudicial to the security of the State and there is every likelihood of their being released on bail and indulging in such subversive activities.

(3.) THE detention order has been challenged by the detenues on the grounds that the detenues were already in the custody of the respondents and their detention has been directed without disclosing the relevant material and compelling reasons which itself is non -application of mind. The detenues have not applied for bail and apprehension of the Detaining Authority that the detenues will be released on bail is mis -placed. The detenues have not been supplied the material such as FIR, on the basis of which the detention order has been passed. The detenues have not been supplied the grounds of detention which has deprived them to make representation in terms of section 13 of the Act. The cases of Ihc detenues were neither sent to the Advisory Board nor the Board has made a report to the Government. The detenues are illiterate persons and the grounds of detention were explained to them in english language which they have not understood and it was not translated in Kashmiri language which language detenues can understand. Respondents have filed the counter affidavits, controverting the grounds taken by the detenues, slating therein, that the detaining authority was aware of the cuslodv of the detenues and their activities have been found prejudicial to the security of the State. There is likelihood of their release on bail, therefore, the detention order do not suffer for want of cogent material, compelling reasons or non -application of mind. Detenucs were taken in preventive custody on 07 -08 -2000. The detention orders have been approved by the Government in terms of section 8 (4) of the Act vide Government Order dated: 10 -08 -2000. The detenues were produced before the Advisory Board, who has sent its report to the Government on 12 -09 -2000. The Government invoking section 17 has confirmed the detention order vide Government Order dated: 02 -07 -2000. The grounds of detention have been explained to the detenue in Kashmiri language which they fully understood. They have affixed their thumb impressions on the receipt executed in token of receipt of the grounds of detention. They have also been informed to make representation to the Government. The detaining authority is subjectively satisfied that the activities of the detenues arc prejudicial to the security of the State.