MOHAMMAD SALEEM TANTRAY Vs. STATE AND ORS.

JUDGEMENT

(1.) The detenue - Mohammad Saleem Tantray, was detained vide order No. 86/DMB/PSA/2017 dated 21-08-2017 passed by 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 he was lodged in Central Jail Kotbhalwal, Jammu. The detenue continues to be in Central Jail Kotbhalwal, Jammu, at the moment. The order of detention was executed on 24th of August, 2017. The notice of detention has been given to the detenue and the contents of the detention warrant, as contended, have been read over to him in the english language and explained to him in kashmiri language which he understood fully well.

(2.) The order of detention has been challenged on the grounds, inter alia, that the detenue could not have been detained under the provisions of PSA when he was already booked in substantive offences under various F.I.Rs. It is also argued that the detenue has been deprived of the right to file an effective representation against the order of his detention, as the relevant material, relied upon by the Detaining Authority while passing the impugned order of detention, in the form of the copy of dossier, the copy of FIRs, the statements recorded under section 161 of the Code of Criminal Procedure, 1973 (Cr.PC), and the communication received from the Superintendent of Police, Baramulla, have not been furnished to him. Learned counsel for the petitioner has argued that the respondents, in their reply affidavit, have stated that the detention warrant was executed on 24-08-2017 by one ASI Bashir Ahmad No. EXK/791294-63/B of DPL Sopore, who read over and explained the contents of the same to the detenue. Assuming the contention to be correct, the said ASI 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 consequence thereof, 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. Central Jail, Kotbhalwal. 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.