ALTAF HUSSAIN Vs. STATE

JUDGEMENT

(1.) THROUGH the instant petition, Altaf Hussain S/o Mohd. Din R/o Raj Nagar, Budhal, (for short to be referred to as the alleged 'detenue') seeks quashment of the detention order dated 17.05.2008 passed by District Magistrate, Rajouri (Respondent No. 2) under Section 8 of the J&K Public Safety Act, 1978 (for short to be referred to as 'the Act') primarily on the ground that it totally lacks application of mind by the detaining authority and has been passed just in a mechanical manner inasmuch as that in the grounds of detention supplied to him (detenue), he was shown to have been taken into custody in case F.I.R. No. 45/2005 and thereafter in case F.I.R. No. 46/2005 registered at Police Station Budhal and had secured bail in both the aforesaid two cases, whereas it is factually incorrect as he remained in custody upto 02.04.2008 when he ultimately earned acquittal in case F.I.R. No. 46/2005 as is clear from the copy of the judgment (Annexure -A) passed by Principal Sessions Judge, Rajouri. It is after his release from the jail in aforesaid case (F.I.R. No. 46/2005), he was again arrested in case F.I.R. No. 1/2007 registered at Police Station joint Interrogation Centre QIC) Jammu and remained in the Police Station for sometime and then sent to Police Station Budhal where he was served with the impugned order dated 17.05.2008.

(2.) MR . Siddiqui, learned Counsel for the detenue, while developing his case vigorously on the aforesaid facts, submits that this lacks of awareness by the detaining authority and that the detenue could not be detained on the ground for which criminal investigation was carried out and even challan was produced before the competent Court. This material flaw alone is enough to set aside the impugned order of detention.

(3.) ADMITTED position before me is that on the file, there are three affidavits of District Magistrate viz., one dated 29.09.2008, the second dated 26.11.2008 which was tendered by him pursuant to the direction of this Court dated 21.10.2008 and the third dated 31.12.2008 by way of a better affidavit. One fact, which is consistent in all these affidavits is that the detenue was in custody upto 02.04.2008, which fact was not made clear initially by the District Magistrate in the grounds of detention in which it was simply said that after securing bail in F.I.R. Nos. 45/2005 & 46/2005 the detenue had again started indulging in subversive activities inasmuch as he used to provide food, shelter and safe hideouts to the terrorists of an outfit (HM outfit). Even if we give some margin to the District Magistrate for not properly examining the dossier of the detenue and passed the order simply on the basis of whatever was stated before him by SSP concerned or as a matter of fact any other agency and, therefore, inadvertently some contradiction appeared in the grounds of detention as stated by him in his detailed affidavit dated 31.12.2008 filed in the shape of better affidavit, still one glaring fact, which cannot be just ignored by this Court is that the detenue was again arrested on 03.04.2008 in case F.I.R. No. 01 /2007 registered with the Police Station TIC Jammu and released from the Police Station on 13.05.2008 as is categorically stated by the District Magistrate in his affidavit dated 26.11.2008. Therefore, it is not believable at all and would also not appeal to judicial conscious which is an embodiment of reasoning that within three days' time, after his release from the police, he would again indulge in nefarious activities prejudicial to the security of the State. The specific stand taken by the detenue is that he was with TIC Jammu and with Police Station Budhal upto 17.05.2008 when the detention order was passed, which fact, no doubt, has been refuted by the District Magistrate, Rajouri, in his first affidavit dated 29.09.2008 stating that the detenue was taken into custody on 23.05.2008 and lodged him in District Jail Rajouri. But the decision taken in haste creates a lot of doubt in the mind of the Court to hold that either the District Magistrate was not made aware of the entire facts or he did not take pains to apply his mind while passing the order of detention. It appears that it is passed just in a mechanical manner dittoing whatever was stated before him. In short, he just performed his part of job like a rubber stamp. This is not expected of a District Magistrate, who has to deal with sensitive cases of this type.