ZAFAR Vs. STATE AND ORS.

JUDGEMENT

(1.) One Shri Zafar-ul-Islam, appears to have been detained by dint of order bearing No. 58/DMB/PSA/2017 dated 04-07-2017, passed by the respondent No.2 - District Magistrate, Baramulla, in exercise of powers vested in him under clause (a) of section (8) of the Jammu and Kashmir Public Safety Act, 1978 (for short Act of 1978) and the detenue was lodged at District Jail, Kathua, Jammu, and continues to be so at the moment. The order of detention was executed on 06th July, 2017 The grounds of detention, along with the allied documents, are also said to have been served on the detenue.

(2.) The order of detention has been challenged on the grounds, inter alia, that the detenue has not been provided the relevant material like the copy of the dossier, copy of the F.I.R, detailed hereinafter, seizure memos and the statement under section 161 Cr.PC. Thus, he has been deprived of the right to make an effective representation before the Detaining Authority, (i.e. the District Magistrate, Baramulla), against his order of detention. It is also argued that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences under F.I.R bearing No. 277/2016 under section 147, 148, 149, 152, 336, 332, 307 RPC, registered at Police Station Sopore. Learned counsel for the petitioner has argued that the respondents, in their reply affidavit, have stated that the detention warrant was executed on 06-07-2017 by one SI, Mohammad Abdullah No. 271/A (EXK 791464) of police station, Sopore, who read over and explained the contents of the same to the detenue. Assuming the contention to be correct, the said SI ought to have filed an affidavit to substantiate so, which has not been done in the case on hand. The petition, on this ground alone, deserves to be allowed and, as a corollary to it, the order of detention is liable to be quashed.

(3.) Learned counsel for the respondents has argued that the order of detention has been passed after taking into consideration the relevant provisions of J and K Public Safety Act. 1978 (JKPSA). The grounds of detention have been conveyed to the detenue in the language with which he is conversant and these have been read over and explained to him at the place of his detention, i.e. District Jail, Kathua, Jammu. Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law. The arguments of the learned counsel for the respondents are in tune and in line with the pleadings of the respondents.