WASEEM AHMD Vs. STATE

JUDGEMENT

(1.) The detenue - Waseem Ahmad Dar, was earlier detained vide order passed by the respondent No.2 - District Magistrate, Baramulla, in exercise of powers vested in him under clause (a) of sec. (8) of the Jammu and Kashmir Public Safety Act, 1978 (for short Act of 1978), and the detenue was lodged in Central Jail Kotebalwal. The said order was challenged by the petitioner by medium of HCP No. 108/2017. It is pleaded that the order of detention was not approved by the Government, which is evident from order dtd. 7/4/2017 (annexure-E). However, instead of releasing the detenue from the custody, the respondent No.2, issued another order of detention, bearing under the provisions of Public Safety Act, 1978 and the detenue continues to be in Central Jail, Kotebalwal, at present.

(2.) Both the orders of detention have been challenged on variety of grounds. However, the main thrust of the pleadings and the argument of the learned counsel for the petitioner is that the respondent No.2, while informing the detenue of his detention under the provisions of the Act of 1978, also informed him that he can make a representation to the Government against the said detention order, if he so desires. The respondent No.2 has not, however, informed the detenue that he can make a representation to the Detaining Authority and this infraction renders the order of detention liable to be set aside. The respondents have pleaded in their Counter affidavit that the grounds of detention were served upon the detenue and he was told that he has a right to make a representation to the Government against the order of his detention. The arguments have also been advanced on similar lines. It has also been stated by the learned counsel for the petitioner that the orders of detention will not survive on the ground that when a person is already in custody, he cannot be detained under the provisions of Public Safety Act.

(3.) Heard and considered. The detention record has also been perused.