MOHD AKBAR RATHER Vs. STATE

JUDGEMENT

(1.) SUBJECT Mohammad Akbar Rather, son of Wali Mohammad Rather, resident of Doonigund, Tral Teh. Tral, District Pulwama through his father Wali Mohammad Rather, seeks to quash the detention F -290/DMA/Det/PSA/2004/351 -56 dated 30.01.2004 (which shall be hereinafter referred as impugned order) passed by respondent No.2, District Magistrate, Anantnag in exercise of powers in terms of Section 8 of Jammu & Kashmir Public Safety Act, 1978, whereby the detenue stands detained in detention and lodged in Kotebhalwal Jail, Jammu. The impugned order has been assailed on various grounds taken in the memo of petition.

(2.) THE respondents have filed reply counter affidavit and have resisted the petition. Heard. Perused. Considered. It is admitted that detenue was in custody in FIR No.193/2003 under Section 7/25 I.A.Act P/S Bijbehara at the time of passing of impugned order. The detaining authority has not spelled out compelling reasons for detaining the petitioner in detention under Public Safety Act. Even the detaining authority has not made a whisper in the grounds of detention that detenue has applied for bail and whether bail has been granted. The Apex Court in a judgment reported in AIR 1995 SCW 1841 has held as under; - When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority awareness of the fact that the detenue was in judicial custody at the time of making the order of detention the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averments made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder cannot be said to be proper and justified .

(3.) IN another case Amrit Lal and others v/s Union of India reported in (2001)1 SCC 341 their Lordshisps of the Supreme Court observed; - 6. The requirement as noticed above in Binod Singh case that there is likelihood of the petitioners being released on bail however is not available in the reasoning available is the Ëœlikelihood of his moving application for bailâ„¢ which is different from Ëœlikelihood to be released on bailâ„¢. This reasoning, in our view, is not sufficient compliance with the requirements as laid down. 