AB RASHID SARAF Vs. STATE

JUDGEMENT

(1.) BY medium of this writ of habeas corpus, the detention order No : DMBConfPSA32988 dated : 2 -1 -1988 passed by the District Magistrate; Baramulla, under section 8 of the Public Safety Act (hereinafter referred to as Act) detaining Mohd Ashraf Saraf so Ghulam Mohamad Saraf ro Mohalla, Jadeed, Baramullah, as been challenged various grounds as enumerated in the petition. Despite repeated opportunities, the counter affidavit was not filed on behalf of the respondents with the result that the factual allegations made in the petition have remained un controverter. Heard learned counsel for the petitioner. Nobody appeared for the respondents to argue the case. The order impugned cannot stand in the eye of law, for the following reasons; - It is alleged in the writ petition that the detenue was in the police lock up for about two months without authority of law and at the expiry of the said period the order of detention under the Act was served on him. The allegations have been made on affidavit which stand uncontroversial as no counter affidavit has been filed.In the detention order, it is no where mentioned that the detenue was already under arrest when the order impugned was passed. The detaining authority has not shown his awareness about the arrest of the detenue while passing the order, which renders the said order illegal :

(2.) THE order of detention has not been furnished to the detenue as is clear from the endorsement of the District Magistrate in the letters addressed by him to the Superintendent, Central Jail. He has only forwarded the grounds of detention to him, to be delivered to the detenue. The non -supply of such material has deprived the detenue of his fundamental right to make an effective representation against his detention which right is guaranteed to him UArticle 22 (5) of the Constitution of India.

(3.) THE detaining authority has not furnished the detenue any dossier which was placed before him by the police for his subjective satisfaction about the alleged activities of the detenue : This has also deprived him of his right to make a representation against his detection. What material was placed before the detaining authority is not has indicated anywhere. After all, his subjective satisfaction must be based on some material. He could not be an eye witness to all the incidents mentioned in the grounds of detention which relate to 1986, and if so, he has not made any such assertion.