ABID ALI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS Habeas Corpus (Writ) petition is filed against the order of detention vide Government Order No. Home -ISD -293 of 1987 dated August 26, 1987 under clause (b) (i) of sub -section (1) of section 8 of the Jammu & Kashmir Public Safety Act, 1978 (for short hereinafter called the Act). By the order impugned, the petitioner who is not a Citizen of India nor a resident of J&K State has been detained under the Act.

(2.) PETITIONER was earlier detained under Order No. 55/PSA dated October 5, 1984 under section 8 of the Act and the detention was confirmed for a period of 12 months under section 17 of the Act by the Government. The said order of detention was challenged by way of Habeas Corpus (writ) petition No. 904 of 1984, which was contested by the respondents and this Court while disposing of the said writ petition vide Order dated February 27, 1985 directed the respondents to make arrangement for the expulsion and deportation of the petitioner from the State. It appears that the respondents instead of taking action of deportation as per directions in the said writ petition prosecuted the petitioner under section 14 of the Foreigners Act. The petitioner in that prosecution pleaded guilty and the Judicial Magistrate, R. S. Pura convicted him to undergo three years R. I. and a fine of Rs. 1,000/ -. Against the said conviction and sentence, the petitioner preferred an appeal before the learned Session Judge, Jammu, who by his order dated December 19, 1986 in Criminal Appeal No. 10 of 1986 reduced the sentence by confining the conviction for a period already undergone and a fine of Rs. 300/ -. The order passed in the said appeal was challenged in Criminal Revision by the State -Respondent in Criminal Revision No. 25 of 1987 before this court, which after hearing was dismissed on September 8, 1987 and the order passed by the learned Session Judge Jammu reducing the sentence & fine was, therefore, maintained.

(3.) THE present order of detention impugned in this writ petition appears to have been passed during the pendency of the said Criminal Revision in anticipation that even if the order is maintained by the High Court passed by the learned Sessions Judge, there was an "apprehension that the activities of the petitioner shall continue, which will be prejudicial to the security of the State. The impugned order is, therefore, passed by the Advisor. Security -cum -Commissioner/Secretary to Government Home Department on August 26, 1987 in the following grounds: - "You along with your other associates crossed -over this said from Pakistan after admitting that you have been indulging in the transborder crossing/charas smuggling/working for the Pak Intelligence agents, you were accordingly detained under Public Safety Act for a period of one year. After the expiry of detention period, you were tried in the case FIR 296/84 under section 48 Excise Act, 49 Opium Act 8/14 D. D. Act and 14 FA along with other accused persons. You were sentenced to 3 years rigorous imprisonment with a fine of Rs. 1,000/ - after having confessed the guilt. However, after undergoing part of sentence, your sentence was reduced in an appeal filed by you, in the Sessions Court and the sentence was computed to imprisonment already undergone by you and the fine was also reduced to Rs. 300/ - only. Not -with -standing, the State has filed a revision petition before the Honble High Court against the order of the Sessions Judge, you cannot be let off unless proper procedure for your deportation from India is adopted. You have also started to revive your old connections with your associates & are indulging in the activities which are prejudicial to the security of the State and if not restrained you are likely to revert back to the transborder smuggling of narcotics as well as working for Pak intelligence agencies. Your re -detention, therefore, under Public Safety Act with a view to regulating your continued presence in the State and also with a view of making arrangement of your expulsion from the State has become imperative. Hence the detention order. Sd/ - Advisor Security -Cum -Commissioner/ Secretary to Government Home Department.". The grounds enumerated hereinabove denote that without deportation and expulsion of the petitioner, the respondents anticipated on a supposition that the activities of the petitioner, which were the subject matter of writ petition No. 904 of 1984 will revive. It also shows that the respondents were not in a position to make the arrangement of expulsion of the petitioner in accordance with the directions of the court in the said writ petition. It also appears from the preamble of the grounds that though the petitioner was neither deported nor expelled from this State and even if the authorities thought that he is continuing the said activities mentioned therein, it shows the non -application of mind apparently because the petitioner till date never came out of detention so as to revive his activities.