WASEEM MEHRAJ FARASH Vs. STATE AND ORS.

JUDGEMENT

(1.) The detenue - Waseem Mehraj Farash, was earlier on detained by the respondent No.2, District Magistrate, Baramulla, in exercise of powers vested in him under clause (a) of section (8) of the Jammu & Kashmir Public Safety Act, 1978 (for short Act of 1978), in terms of detention order bearing No. 251/DMB/PSA/2017 dated 06-02-2017 and lodged in Central Jail, Kotebhalwal, Jammu. The said order was challenged by the medium of HC(P) 65/2017 and after allowing the writ petition on 21-07-2017, the order of detention was quashed by this Court and the respondents were directed to release the person of the detenue from preventive detention forthwith. Learned counsel has stated that when the said order was served on the respondents, the detenue, instead of being released, was booked in case bearing F.I.R No. 391/2016 u/s 7/25 Arms Act . The detenue was kept in illegal custody and later on by dint of another order of detention bearing No. 96/DMB/PSA/2017 dated 07-09-2017, impugned herein, the respondent No.2, directed the lodgment of the detenue in District Jail, Kathua, Jammu. The detenue continues to be there at the moment. The order of detention was executed on 08 th of September, 2017. The grounds of detention, along with the allied documents, are said to have been served on the detenue and the contents thereof, as contended, have been read over and explained to him in the language which he understood fully well.

(2.) The order of detention has been challenged on the grounds, inter alia, that the relevant material, such as the copy of the dossier and other connected documents, has not been provided to the detenue. He is, thus, said to have been deprived of the right to file 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 No. 391/2016. Learned counsel for the petitioner has argued that the respondents, in their reply affidavit, have stated that the detention warrant was executed on 08-09-2017 by one ASI Ghulam Ahmad No.1015/S (EXK-832470) of DPL Baramulla, 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 & 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.