HASHIM AHMAD DAR Vs. STATE AND ORS

JUDGEMENT

(1.) The detenue Hashim Ahmad Dar, has been detained by the respondent No.2 District Magistrate, Baramulla, in terms of the detention order bearing No. 70/DMB/PSA/2017 dated 17-07-2017, 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). The detenue has been lodged in Central Jail Kotbhalwal, Jammu, and continues to be there at the moment. Learned counsel for the petitioner states that the detenue was arrested by the security forces in the month of December, 2016 and was taken to the Security Camp and detained there for many days. Thereafter he was shifted to police station, Tarzoo, where he was implicated in a case bearing F.I.R No. 300/2016. The detenue, after applying for bail before the Court of competent jurisdiction, was released on bail from the police station, Tarzoo. Learned counsel states further that in the month of February, 2017, the detenue was called by the authorities of police station, Baramulla, and was kept in confinement in case bearing F.I.R No. 198/2016. The detenue was again granted bail by the Court of competent jurisdiction and ultimately released from custody.

(2.) The order of detention has been challenged on the grounds, inter alia, that the detenue has not been provided the copies of the relevant material, relied upon by the detaining authority while passing the order of detention. The copy of dossier, the copies of F.I.Rs, the Statement u/s 161 Cr.PC, the seizure memos, the arrest memos, the bail orders etc. have not been provided to him. He has, thus, been deprived of the right to file an effective representation before the Detaining Authority, i.e. the District Magistrate, Baramulla, against the 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 and in some of the F.I.Rs, he was also granted bail. Learned counsel for the petitioner has argued that the respondents, in their reply affidavit, have stated that the detention warrant was executed on 18th of July, 2017 by one ASI Bashir Ahmad No. 38/PL,EXK No.811245, 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. 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.