AB HAMID ITOO Vs. STATE OF J&K

JUDGEMENT

(1.) DETENU Abdul Hamid Itoo through his father seeks to quash of the detention Order No. DMS/PSA/92 dated 28.11.2002 passed by the District Magistrate, Srinagar in exercise of his powers under section 8 of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter called as the Act") directing preventive detention of the detenu. The detention order has been challenged on various grounds. The respondents in their counter affidavit have specifically replied the grounds set out in the petition.

(2.) HEARD learned counsel for the parties and perused the record. Relying on Section 13 of the Act, the ld.counsel for the petitioner has submitted that the respondents in their counter affidavit have stated that the grounds of detention have been served upon the detenu on 28.11.2002 and detenu taken in preventive custody on 20th December, 2002 which means that the grounds have been served before the detenu is taken in custody, which is contrary to the statutory procedure contained in Section 13. There is substance in the plea of the Ld. counsel for the petitioner. For facility of reference, Section 13 is extracted below:

(3.) PERUSAL of this provision of law indicates that the grounds of detention are to be communicated to the detenu when he is detained in pursuance of the detention order. The words "when a person is detained" signify that the detenu must have been taken in preventive custody and thereafter only the grounds of detention are required to be communicated. The detenu was taken into custody on 20th December, 2002 and the service of the grounds of detention order i.e. 28.11.2002 appears to be not justified and tenable. There is no explanation tendered by the respondents to the extent that if the detenu was detained on 20th December, 2002, how and where the grounds of detention were communicated on 28.11.2002 i.e. much earlier to the date of detention. The manner in which the grounds of detention have been served cannot be treated to have been served strictly in accordance with the mandate of law. The things are required to be done as prescribed and in the same manner, which has not been done. Therefore, it is held that the grounds of detention have not been communicated on the detenu which is breach of the mandatory provision of law.