MOHD LATIF Vs. DISTRICT MAGISTRATE POONCH

JUDGEMENT

(1.) This is a Habeas Corpus Petition moved on behalf of one Mohd Latif son of Fateh Mohd resident of village Topa Tehsil Mendhar, District Poonch challenging his detention ordered by District Magistrate, Poonch on May 1, 1990. The detenue was apprehended on May 19, 1990. He was an Ex-Serviceman who had proceeded on Board Pension. While he was on such pension, he is alleged to have come in contact with one Aftab son of Munshi Khan rio village Sagar and also one Janghir of Pak Embassy at New Delhi. It is further alleged that the latter motivated the detenue to work for Pak intelligence and as a result of this, the detenue started indulging in espionage activities which have been detailed out in the grounds of detention.

(2.) In addition to some grounds to which reference shall be made later, the petitioner challenges the detention order inter-alia on the following grounds:

(3.) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. Once it is not shown that the order of detention was furnished to the detenu within the time stipulated u/s. 113 of the Act, the order stands vitiated. (b) The examination of the file has further revealed two important aspects of the case: Firstly, the detention order has been passed by District Magistrate and obviously is one passed in terms of sub-section (2) of section 8 of the Act The condition precedent for maintaining the order passed under sub-section (2) has been laid down under sub-section (4) of section 8 which reads as under: - 11(4) When any order is made under this section by an officer mentioned in subsection (2), he shall forthwith report the fact to the Govt. together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after making thereof unless in the meantime, it has been approved by the Govt." A plain reading of the above provisions makes it clear that the life of an order passed under subsection (2) of section 8 shall ipso-acto expire after the expiry of 12 days of passing of this order unless the same is approved by the Government. The learned Distt. Magistrate while passing the detention order has in compliance with provisions of law submitted the case to the Govt. obviously for obtaining the sanction for the said detention order. Besides this, he has in terms of his letter No. J-1123 dated 1/5/1990 addressed a communication to the Commissioner for Home Department for consideration of the case and obtaining the requisite confirmation. I have gone through every leaf of the file, but I was unable to trace out any sanction having been accorded, to the detention in question.