BASHIR AHMAD RATHER Vs. STATE

JUDGEMENT

(1.) THE petitioner Bashir Ahmad Wani son of Ghulam Rasool Wani R/o Nutnussa, Handwara was detained pursuant to an order of detention bearing No -DMK/PSA/53 of 2002 dated: 15.3.2002 issued by District Magistrate, Kupwara, and respondent No. 2, under section 8 of the Jammu and Kashmir Public Safety Act (hereinafter to be referred to as "the Act"). Subsequently the order of detention was confirmed by the Government for a period of 24 months against the detenue who came to be lodged in Central Jail, Kotebalwal, Jammu. The order of detention has been challenged by the detenu through his father namely, Ghulam Rasool Rather on variety of grounds.

(2.) TO begin with, it is submitted that the detaining authority is stated to have recorded satisfaction on the basis of the allegations levelled in the FIR referred to in the grounds of detention. According to the learned counsel for the petitioner, this was the only material before the detaining authority on the basis of which the satisfaction was drawn for passing the order of detention. The detaining authority was, therefore, bound to provide the material, copies of the FIR, seizure memo, disclosure statement, investigation conducted and the other material referred to in the grounds of detention to the detenu to enable him to make an effective and meaningful representation against the said detention before the competent authority/Government. It was next contended that the detenu was initially arrested on 13.3.2001 by the security forces and later on booked in FIR No. 113/2001 Police Station, Kupwara for offence under section 7/25 Arms Act. The detenu was later on released on bail by the Court of competent jurisdiction vide order/docket dated: 13.4.2001. The detention order nowhere points out any subversive activities attributed to the detenu during the period he remained on bail and till he was taken in preventive custody and thus do not provide any compelling circumstance to the detaining authority for passing the detention order (for eight months that he was enjoying liberty as a free citizen). This fact having not been disclosed either in the dossier or in the grounds of detention, it is manifest that the detaining authority was not made aware of the fact that detenu was enlarged on bail and the detention order being silent about these facts, amounts to total absence of application of mind and renders the detention illegal. It was further submitted that the grounds of detention being vague, and indefinite, also came in the way of the detenu to make effective representation to be made before the competent authority against his detention.

(3.) THE respondent -detaining authority has filed the counter. It is submitted in ground (d) thereof that the contents of the warrant and grounds of detention were served, read over and explained to the detenu. It is further stated that the detenu was informed about his right to make an effective representation against his detention if he so desired. It was further stated that the detention order was drawn due to compelling reasons after application of mind to the fact that ordinary criminal law was not sufficient to deter the detenu from continuing his activities.