AB RAHIM RATHER Vs. STATE

JUDGEMENT

(1.) PETITIONER , Abdul Ahad Rather is the father of detenue Abdul Rahim Rather who has challenged the detention of his son, the detenue, through the medium of this petition. The petition is grounded on the facts that the security forces during the crack -down, without any cause or reason, apprehended the detenue on 22.9.1993 and since then is continuing in unlawful detention. Later on he was detained formally under the provisions of J&K Public Safety Act, 1978 by respondent No. 2 vide detention order No. 14 of 1994 dated 14.3.1994, which order, according to the petitioner, was neither served nor communicated to the detenue in the manner as prescribed by law. However, the petitioner has been able to obtain a copy of letter No. DMB/PSA/1692 dated 18.3.1994 addressed by District Magistrate, Baramulla to the father of the detenue which shows that the detenue has been detained by respondent No.2 under the provisions of J&K PSA. A copy of the said letter is on the record as annexure P1. Please taken in the petition are that the detenue has not been served with any detention order, grounds of detention and the material relied upon for detaining detenue have not been provided to the detenue at all, which precluded him to make an effective representation; that the detenue was not informed that he could make a representation against his detention to the Government; that the detention case of the detenue has not been referred to the Advisory Board within the stipulated time, nor the detention order was confirmed by the Government within the period prescribed by law. A copy of the grounds of detention has been obtained by the petitioner unofficially. These are vague, irrelevant and have never been read over or explained to the detenue in the language he understand viz. Kashmiri; that the detenue had never applied for bail, so the order of detention is not sustainable. Lastly, the plea has been taken that the impugned order of detention has mechanically been passed without application of mind. As such the same is liable to be quashed.

(2.) INTERIM orders on the file reveal that sufficient time has been given to the other side to file the counter -affidavit, but that has not been filed by the respondents. On 27.9.1994 last and final opportunity was given in this behalf to the respondents, but of no avail and the case was ordered to be listed for hearing.

(3.) HEARD Learned counsel for parties at length and have given my thoughtful consideration to the arguments advanced in this behalf. Notwithstanding the case is based on facts and those facts have not been controverted by the otherside, nevertheless an important point of law has been raised by the counsel for petitioner regarding application of mind before passing the impugned order. My attention has been drawn to the communication No. DMB/PSA/1692 dated 18.3.1994 written by District Magistrate, Baramulla, respondent No. 2, to the petitioner who is the father of the detenue which reads as under: -