MASARAT ALAM BHAT Vs. STATE AND ORS.

JUDGEMENT

(1.) The District Magistrate, Jammu, in exercise of powers conferred upon him by Jammu and Kashmir Public Safety Act, 1978 ( for short 'Act of 1978') issued Order No. 5/PSA of 2015 dated 1st September, 2015, whereunder, Masrat Alam S/O Late Abdul Majeed Bhat R/O Zaindar Mohalla Srinagar ( for short "detenue") has been detained. The Government vide Government Order No. Home/PB -V/1397/2015 dated 30th November, 2015, in exercise of powers conferred upon it by Section 8(1) read with Clause (a) Sub Section (i) of Section 8 of the Act of 1978 has directed that detenue be detained for further period of three months with effect from 1st December, 2015.

(2.) The detenue has challenged the aforesaid order in this petition.

(3.) The respondents have filed reply affidavit. Mr. M.A.Qayoom, learned counsel for the detenue submitted that the impugned detention order is illegal, inter -alia, on the grounds; the District Magistrate has abused its Authority by issuing detention order, inasmuch as, the grounds of detention, which have been relied upon by him are not only stale, but have been considered by the Court in the earlier round of ligation vide its Judgment dated 2nd June, 2012 passed in HCP. No. 32/2015 and detention order was quashed; the detenue at the time of issuance of impugned detention order, was in the custody of the State, as such, had not indulged in any activity which would warrant for issuing fresh detention order; the detenue was arrested in FIR. No. 92/2015 registered at Police Station Budgam under Sections 120 -B, 121,124 -A, 147, 341,336 and 427 RPC read with Section 13 of Unlawful Activities (Prevention) Act and bail application filed by him stands rejected by the learned Chief Judicial Magistrate, Budgam vide its Judgment dated 25 th April, 2015 and this order has not been challenged by the detenue, but the detaining Authority at the time of passing of impugned order has not shown its awareness about the said fact; in the detention order the detaining Authority has mentioned that detenue has been detained to prevent him from acting in any manner prejudicial to the maintenance of public order, whereas in the grounds of detention it has been mentioned that the order is being passed from preventing the detenue from indulging in activities which are prejudicial to the security of the State and maintenance of public order; the alleged activities attributed to the detenue while he was in jail cannot become a ground in law for issuing the impugned detention order. Learned counsel in support of his contentions referred to and relied upon the judgments of Hon'ble the Supreme Court and this Court reported in AIR 1970 SC page 1664, 2013 (1) SLJ 273, 2008 (II) SLJ 689, (1980) I SCC page 132 and prayed for allowing of this petition.