GULLA SOFI Vs. STATE OF J&K

JUDGEMENT

(1.) THE detenue Gula Sofi has been, detained in pursuance of the Amended Sec. 8 of the Jammu and Kashmir Public Safety .Act. The amendment has been affected by means of an Ordinance dated 11 -10 -1984 promulgated by the Governor in pursuance of Sec. 91 of the Jammu and Kashmir State Constitution. The detenue is said to be habitual activist in timber smuggling and various charges connected with the transportation, stocking, felling and smuggling of the timber are brought against him. The detention is challenged on the ground of it being unconstitutional and for having denied the detenue the right to file an effective representation.

(2.) IN his counter affidavit, the District Magistrate, Badgam has submitted that he was assumed satisfication on the material placed before him by the Supt. of Police Badgam and has stated that the grounds of detention were communicated to the detenue. In para 3 of the reply affidavit the Detaining Authority has submitted that the detention of Gh. Qadir Dar has been ordered on sufficient grounds. It is curious to note that he has been justifying the detention of one Ghulam Sofi but has in his affidavit stated about the detention of Ghulam Qadir Dar. This would indicate non -application of mind on the part of the Detaining Authority on his own showing in respect of issuance of the detention order.

(3.) EXCEPT one of the grounds, all the ground are based on the material alleged to have been furnished by the Supdt. of Police to the Detaining Authority. One of the grounds is based on F. I. R. No. 72/84. It is admitted fact that neither, copy of the report of the Supdt. of Police nor copy of the F. I. R. has been furnished to the detenue. Consequently he could not make an effective representation about his detention. The detenue has fundamental right to make an effective representation against his detention and for this purpose he must be supplied with full material which is made use of by the Detaining Authority against him. His right to file an effective representation cannot be taken away by the Ordinance. The Ordinance gives drastic powers to the Detaining Authority to detain a citizen for timber smuggling and for other materials connected with it but cannot in any manner effect the provisions of Art. 22(5)of the Constitution of India. I refrain to say anything about the validity or otherwise of the Ordinance because that has not been argued before me. But I am constrained to say that the detenues right to file an effective representation has been seriously effected because he has not been given copies of the material collected and used against him and the copy of the F. I. R. He therefore was prevented from filing an effective representation which has effected his fundamental right For the reasons stated above, I declare the detention of the detenue Gulla Sofi as unconstitutional and illegal and order that he be released forthwith.