HAJI GHULAM MUHAMMAD SHAH Vs. DISTRICT MAGISTRATE SRINAGAR

JUDGEMENT

(1.) ORDER :- The order of detention dated 12-4-1997 of one Ishtiyaq Ahmad Shah S/o Haji Gh. Mohammad Shah R/o Malik Saheb Nowhatta, Srinagar passed by District Magistrate Srinagar (Annexure-A) is challenged in this writ petition under S. 103 of the Constitution of Jammu and Kashmir State corresponding to Art. 226 of the Indian Constitution on the following grounds :- The detenue Asstt. Executive Engineer, Srinagar Municipality was picked up by B.S.F. 106 Bn. on the intervening night of 3/4 March, 1997 from his residence and was with them till 10-3-97 when he was handed over to Police Station Nowhatta. On 26-3-1997 detenue was admitted to bail by the Chief Judicial Magistrate, Srinagar after report was submitted to the Magistrate that he is involved in FIR 28/97 under S. 489(b), 121, 121(a), 122, 10/11, 13 VLAP Act. However, he was not released. He continued to be in detention with J.I.C. Srinagar till 10-5-1997. It was only on 11-5-97 that he was shifted to Kathua and was served a copy of detention order at District Jail Kathua. The grounds of detention (Annexure-B) have been denied one by one. It is alleged that the copies of photographs, fax message, Video cassettes etc. have not been provided to him. The Pass book as also the amount deposited in the Pass book, is claimed to be detenue's money, which he has earned from business earlier to his joining the service. One of the grounds for detention is that the detenue is involved in FIR 28/97 u/S. 489, 121-A, 122 RPC 10/11 Criminal Law Amendment Act, 13 VLAP Act registered at Police Station Nowhatta, and FIR No. 203/92 u/S. 302, RPC 3/25 IAA 3(1) TADA, registered at Police Station Shaheed-Gunj. In FIR No. 28/97 he has been already admitted to bail, whereas, he is not even arrayed as accused in FIR No. 204/92 in which challan has been produced by CBI in Court on 26-5-1995, against three persons and the detenue is not one of them nor he is shown in any way connected with the case. Similarly, use of Maruati Car JKE-5711 for transporting arms from place to place is false as no such vehicle was ever owned by the detenue nor was such a vehicle under his occupation or use. All the material referred in the grounds of detention has not been supplied to the detenue.

(2.) The facts that the detenue was not involved in FIR No. 204/92, though shown in the grounds as involved in the case and that the accused had been admitted to bail in FIR 28/97 though not so indicated in the grounds and that the detenue was not involved in FIR No. 204/92 (Supra) in which challan had been produced in the Court much earlier to the order of detention, reveal and demonstrate that the detaining authority has been unaware of such developments and has passed the order in ignorance of the facts. Even the other grounds mentioned in the grounds of detention have not been properly adverted to nor considered in their proper context. It is further alleged that all these facts speak non-application of mind by the detaining authority while passing the impugned order of detention. It is also pleaded that on behalf of the detenue three representations were made to the Minister of State (Home), the Governor of Jammu and Kashmir and Chief Minister of the State (Annexures E, F and G). These representations were made under the instructions and on behalf of the detenue, but the representations have not been considered and decided till date. It may be noted that the petition has been filed on 13-8-1997 and the representations filed earlier thereto have not been decided despite lapse of several months and in any case not less than seven months have passed by. Copies of the representations reveal that the Minister of State for Home has endorsed representation to Inspector General of Police, CID, CIK, Jammu on 11-4-97, while as the other two representations have been submitted thereafter. In all the representations the subject is the detention of Ishtiaq Ahmad Shah, the detenue seeking release on grounds stated thereto.

(3.) Despite opportunities right from 19-8-1997, the State of Jammu and Kashmir and the District Magistrate, Srinagar represented by Mr. Ghulam Mustaffa, G.A. have not filed any counter. At least six opportunities spreading over last six months have been granted to the respondents through Mr. G. Mustaffa, GA, to file counter, but for reasons best known to Respondents, counter has not been filed.