ZUBAIR AHMAD BHAT Vs. STATE

JUDGEMENT

(1.) ZUBAIR Ahmad Bhat had to land in preventive custody under the provisions of the Jammu and Kashmir Public safety Act in pursuance of the order of District Magistrate, Baramulla bearing No. 60 of 2000 dated 16.11.2000 which became subject matter of the Habeas Corpus Petition No. 103/2001. It was allowed by judgment dated 31.07.2001 and order of detention quashed but the detention was prolonged due to second order of detention bearing No. 97 of 2003 dated 19.04.2003 passed by the same detaining authority i.e. the District Magistrate, Baramulla. It is the said order which is questioned by this Writ petition.

(2.) A perusal of the impugned order reveals that the order of detention is based on the registration of FIRs 155/ 2002 and 161/2002 notwithstanding the fact that the investigation into these FIRs had been closed because of absence of evidence. This important event is neither mentioned in grounds of detention nor in the order of detention. Such omission makes it a clear case of non application of mind, resultantly, the impugned order is vitiated. In taking this view I am fortified by judgment of the Apex Court passed in Anant Sakharam Raut v. State of Maharashtra and another reported in AIR 1987 page 137 wherein it is pointed out:

(3.) SUSTAINABILITY of impugned order of detention is also questioned on the strength of mandate of article 22 (5) from which a right to representation flows to the detenue which is said to have been observed in breach. To substantiate the contention my attention is drawn to a communication addressed by the District Magistrate to the father of the detenue vide communication No. DMB/PSA/2670 dated 19.04.2003 (Annexure P4 to the writ petition) requiring the addressee therein to make a representation to the Government if he so desires which was responded through a representation by the detenues father which fact is established by the detaining authoritys communication bearing No. DMB/PSA/2670 dated 19.04.2003 (Annexure P3 to the writ petition).