SAIFULLAH Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner, Saifullah, son of Mohammad Malik Khan, resident of Kadri Colony, 2 Lahore, Pakistan, came to be arrested by Delhi Police on 12th August, 1998, while found roaming in Lajpat Nagar area. A pistol and eight live cartridges stood recovered from his possession, in consequence of the recovery effected by the Police that became the basis of FIR No. 674/98 for commission of offences under section 25, 54 and 59 of the Arms Act. The petitioner was sent up for trial before Metropolitan Magistrate, New Delhi, on the conclusion of the investigation by the Police. Bail was granted to the petitioner during trial, but the petitioner jumped the bail and absconded. The petitioner was again arrested on 8th January, 2000 by the Police and a case under FIR No. 4/2000 was registered in Police Station, Arnia. The petitioner was challenged before Judicial Magistrate, R.S. Pura on 2nd February, 2000, in which he was convicted and sentenced to undergo six months rigorous imprisonment. On the conclusion of the trial, the Magistrate also directed the petitioner to be pushed back to the native country in Pakistan. It was during the currency of this trial, the competent authority after having been satisfied regarding the activities of the detenue being prejudicial to the security of the State, made an order for his detention on 06 -12 -2000 for a period of two years. The trail of the case, in which the petitioner had remained absconded, further commenced before the Metropolitan Magistrate, Delhi, since the detenue had been shifted to Tihar Jail in New Delhi. The detenue was convicted and sentenced to three years rigorous imprisonment and imposed a fine of Rs 2000/ - for offence under the Arms Act, on the completion of the trial by the Court vide judgement dated 05 -08 -2002. The Detaining Authority (Government) issued an order for preventive custody of the detenue for a period of 24 months effective from 15 -12 -2002 in order to regulate his continued presence, being a foreigner under the provisions of Foreigner Act. This detention order was passed by the Government vide Government Order No. Home (PBV)/2399 of 2002 dated 10 -12 -2002. Petitioner, however, made an application to the Honble Supreme Court of India for his release and push back, which came to be forwarded for necessary action and disposal in accordance with law vide communication dated 24th November, 2003. This application, however, was treated as Habeas Corpus Petition and came to be admitted on 24 -12 -2003 with a notice to the respondents for filing counter affidavit. Since there was no representation for the detenue, Mr. J.P. Singh, Advocate, was requested to assist the Court as amicus curiae, vide order dated 22 -04 -2004.

(2.) IT is pertinent to point out that in his application, the petitioner/detenue has not challenged his detention order on any grounds whatsoever. His prayer is only confined for his release and push back. For facility of reference, the prayer part of the application of the petitioner/detenue is reproduced, which reads as under:

(3.) IN controverting the contention of the petitioner, the respondents have filed a reply affidavit in giving details of the events in seriatim and taken a specific stand that the order of detention for a period of 24 months w.e.f. 15 -12 -2002 has been issued by the Government under the provisions of the J&K Public Safety Act, 1978 (hereinafter for short referred to as "the Act") in order to regulate his continued presence, being a foreigner under the provisions of Foreigners Act.