AB AHAD RATHER Vs. STATE

JUDGEMENT

(1.) THIS writ petition emanates from an apprehension of issuance of an order of detention against the petitioner, obviously, aimed at a restraint to be placed upon the District Magistrate on the ground traceable to the alleged absence of the material. There cannot be two opinions that if there is no material available on which the detaining authority can reasonably draw an opinion for issuance of an order of detention, the affected person is within his rights to challenge the same. Whether order of detention is called for, depends on the basis of material that is made available to the detaining authority and in case material is sufficient, the authority is within its jurisdiction to pass the order. Needless to say that in case order of detention is passed in absence of material, nothing prevents the petitioner to question such order. Suffice it to say that the writ petition at this stage is premature because order of detention has not been passed as on date and the material is yet to receive consideration at the hands of the detaining authority. Situation would be different if the District Magistrate would lack the power to pass the order of detention but fact remains that his power is not unknown to the statute. Thus no restraint can be placed on the exercise of power that flows to the District Magistrate from the statute called the Jammu and Kashmir Public Safety Act, 1978, that too, on mere allegation of absence of the material.

(2.) IN the aforementioned backdrop, indulgence is uncalled for, resultantly, writ petition is dismissed along with CMPs.