SHAKEEL AHMAD ITOO Vs. STATE AND ORS

JUDGEMENT

(1.) The detenue Shakeel Ahmad Itoo, was earlier on detained by the respondent No.2, District Magistrate, Shopian, 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.30/DMS/PSA/2016 dated 04-07-2016 and lodged in Central Jail, Srinagar. The said order was challenged by the medium of HC(P) 131/2016 and after allowing the writ petition on 30-05-2017, 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 shifted by the respondents to police station, Shopian, and was kept there illegally and improperly for a considerable period of time, before he was again detained on the same set of grounds under the provisions of the Act of 1978, in terms of the order of detention bearing No. 103/DMS/PSA of 2017 dated 28-06-2017, impugned herein. The detenue was sent to the Central Jail, Srinagar, and continues to be there at the moment. The order of detention was executed on 04th of July, 2017.

(2.) The order of detention has been challenged on the grounds, inter alia, that the detenue has not been provided the material record such as the copy of the dossier, copies of F.I.Rs, as reflected in the grounds of detention, copies of the statements of witnesses recorded u/s 161 Cr.PC and other connected documents. 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, Shopian, 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 various F.I.Rs including the F.I.R No. 225/2015 & F.I.R No. 57/2016, registered in police Station, Shopian. Learned counsel for the petitioner has stated further that the detenue was in the custody of the respondents when the impugned order dated 28-06-2017 was issued. Learned counsel for the petitioner has stated further that in terms of the Execution Report, the respondents, while informing the detenue of his detention under the provisions of the Act of 1978, he has also been informed that he can make a representation to the Government against the said detention order, if he so desires. The detenue has not, however, been informed that he can make a representation to the Detaining Authority and this infraction renders the order of detention liable to be set aside.

(3.) Despite umpteen opportunities, neither the counter affidavit has been filed nor has the Record, pertaining to the case, been produced before this Court. The right to file the counter affidavit has been closed vide order dated 28-11-2017 of this Court.