GHULAM RASOOL Vs. STATE

JUDGEMENT

(1.) THROUGH this petition the petitioner is calling in question the detention order issued by the District Magistrate, Budgam under Section 8 of the Jammu and Kashmir Public Safety Act and the consequent detention of the detenu Mohammad Maqbool Mir code Baber S/o Ghulam Rasool Mir. The order of detention reads:

(2.) THE District Magistrate after passing the aforesaid order of detention forwarded the same in duplicate to Senior Superintendent of Police Budgam for execution under Section 9 of the Jammu and Kashmir Public Safety Act and he was asked to give notice of the order to the detenu by reading over and explaining the same to him in the language he understands fully. The detenu was already in custody of the police in FIR Nos. 32/02, 50/03, 51/03 and 80/2003. On the date of issuance of detention order under Section 8 i.e., 12.8.2003, the District Magistrate, Budgam also informed the father of the detenu who is petitioner herein that his son has been detained by order No. DMB/PSA/14 of 2002 dated 12.8.2003 made under Section 8 of the Jammu and Kashmir Public Safety Act, so if he wishes to make any representation to the Government against the said order, he may make the same. The grounds of detention were communicated to the detenu through Superintendent Sub Jail Kotebhalwal. After having received the said information from the District Magistrate, the father of the detenu, the petitioner herein has alleged in the petition that he submitted a representation against the detention of the detenu to respondent No. 1 that is State of Jammu and Kashmir through Financial Commissioner Home Department on 9.12.2003. He has also alleged that the copy of the representation was given by the petitioner to respondent No. 2 for information and necessary action. However, despite lapse of more than a month, the representation of the petitioner has not been decided. The copy of the representation submitted by the petitioner has been annexed with the petition as annexure D which carries an endorsement of receipt dated 9.12.2003 by some person who according to the learned counsel for the petitioner is some officer in the office of the Financial Commissioner.

(3.) TO controvert the allegation of the petitioner respondent No. 1 the State of Jammu and Kashmir has not filed any counter affidavit and thereby has allowed the allegation of the petitioner that he had filed the representation against the detention of the detenu to go un -rebutted. It is only in the affidavit filed by the Detaining Authority, the allegation of the petitioner made in this behalf has been denied. The denial of the allegation by the District Magistrate is of no consequence because he is not authority before whom the representation could be made under law and alleged to have been made. In this view of the position the allegation of the petitioner being un -rebutted has to be believed that he made a representation against the detention order on behalf of the detenu to the Government on 9.12.2003.