SYED ALI SHAH GEELANI Vs. STATE

JUDGEMENT

(1.) A person detained under preventive detention law is held in custody without formal charge and trial. The detenue, in the circumstances, is not in a position to deny the charge, cross- examine the prosecution witnesses, take a stand as regards the incriminatory material, if any, against him, and adduce evidence in defence to convince the court that the charge leveled against him is devoid of any substance. Against the said backdrop, the preventive detention order warrants a hard look from the court so as to examine whether meagre safeguards, whatever available under the Constitution and the preventive detention law to the detenue are adhered to and followed in letter and spirit.

(2.) IN the case on hand a closer look at the detention record reveals that the safeguards available to the detenue under Article 22 (5) Constitution of INdia and Section 13 J&K Public Safety Act, have been observed in breach. Resultantly, the order impugned in the petition cannot stand legal scrutiny. Reasons that must persuade the court to allow the petition are as under:

(3.) THE grounds of detention indicate that before the detention order impugned in the petition was slapped on the detenue, the detenue was taken into custody in connection with proceedings under section 107, 151 Cr. P. C. THE detaining authority, however, was of the opinion that there was every likelihood of the detenue being admitted to bail and opining so the detaining authority decided to slap the detention order on the detenue. THEre was no material before the detaining authority nor is reference made to any such material in the grounds of detention, as would persuade the detaining authority to record satisfaction that the proceedings set into motion under Part IV, Chapter VIII Cr. P. C. were likely to be frustrated or would not yield any result. In absence of any such material, the detention order is to be held to have been passed in a mechanical manner depicting non-application of mind on the part of the detaining authority.