DAVINDER SINGH Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) ORDER :- This Habeas Corpus Petition has been filed by Sh Surinder Singh, who is the real brother of the detenu Davinder Singh alias Ghushu, who vide order No. 41-43/PSA dated 3-7-1997 (passed by respondent No. 2) was taken into preventive custody under the provisions of the J. and K. Public Safety Act, 1978 (hereinafter to be referred as the Act). This order has been challenged on the grounds that the detenu is a peace loving citizen of India and never been convicted by any competent Court of law, but has been shown as a hardened criminal whose activities are said as prejudicial to the security of the State. The detenu was arrested on 23-6-1996 by the Incharge Police Post, Janipura and subsequently detained by respondent No. 2 on 3-7-1997. No copy of the impugned order was ever provided to the detenu in order to enable him to make a representation to the Government which suffered from the inherent defect that it was passed without the subjective satisfaction of the detaining authority. It was not approved by the Government within 12 days from the date of its passing as is envisaged under sub-clause (4) of S. 8 of the Act. The order of detention and the grounds of detention are joint and as such, it is not sustainable under law. No material for making a representation to the Government was ever supplied to the detenu. The detenu is under Matric and knows only Hindi language, whereas, the grounds of detention are in English language. He could not understand the contents of the grounds of detention and thus was prevented from making any representation. The case of the petitioner was never referred to the Advisory Board. The events mentioned in the grounds of detention are old and stale in nature. The occurrences are of the year 1993 and 1996, whereas, the detention order was passed in July, 1997. These grounds could have no relevancy for detaining the detenu. It is also alleged that the Act is ultra vires to the Constitution. The compensation in the amount of Rs. 50,000/- is claimed for illegal detention.

(2.) Respondent No. 2 has rebutted these allegations by stating that the detenu has a long track record of his involvement in various heinous criminal cases such as registration of FIR No. 206/90 in Police Station, Kana Chak for offences under Ss. 382/324/323/34, RPC; FIR No. 62/92 registered in Police Station, Kana Chak for the commisison of offences under Ss. 307/34, RPC; FIR No. 77/93 registered in Police Station, Pacca Danga, Jammu for commission of offence under S. 307/34, RPC; FIR No. 69/93 registered in Police Station, Satwari under Ss. 302/120-B, RPC and 3/5, Indian Arms Act, 3/4 TADA; FIR No. 84/94 registered in Police Station, Nagrota under Ss. 363/366, RPC and 3/25 Indian Arms Act; FIR No. 105/96 registered in Police Station, Kana Chak for the commission of offences under Ss. 429/452/147/148, RPC read with S. 3/25, Indian Arms Act. The detention order was passed after proper application of mind and subjective satisfaction. It is denied that the detenu stood arrested on 30-6-1997 but pleaded that the detention order in question was passed on 3-7-1997 which was later on served upon him. The Government had approved the detention order within time and the detention order was separate which accompanied the grounds of detention. The grounds of detention along with the relevant documents were sent to the concerned Superintendent Jail for handing over to the detenu. The case of the detenu was referred to the Advisory Board within the statutory period.

(3.) Heard the arguments.