TALIB HUSSAIN LONE Vs. STATE OF J&K

JUDGEMENT

(1.) THE detenue namely Talib Hussain Lone S/o Gh. Mohd Lone, R/o Dogripora Tehsil and District Pulwama has been arrested by the Security Forces on 20.07.2008. After interrogation detenue has been handed over to Police Station, Bijbehara, where case was registered as FIR No. 135/2008 for commission of offence punishable under section 7/27 of Indian Arms Act. While in custody detenue was ordered to be detained under the provisions of Public Safety Act pursuant to detention order No. DMA/PSA/DET/2008/10 dated 30.07.2008. Dissatisfied with the order of detention, brother of the detenue has filed this petition seeking quashment of the same.

(2.) APPEARING counsel for petitioner first contended that the detenue who was in custody had not applied for bail, neither bail had been granted. Furthermore, Section 27 of Arms Act prescribes the punishment of life imprisonment, so the likelihood of obtaining bail at the stage of passing of detention order was unimaginable. The detaining authority was required to state compelling reasons warranting passing of detention order. The submission is forceful because when a person is involved in connection with commission of offences which carries life imprisonment, obtaining of bail is far from imagination unless some evidence during trial is recorded or otherwise mitigating circumstances to believe non -complicity exist. Detaining authority has simply mentioned that there is every likelihood of release on bail. Same is baseless; more so when the detenue has not applied for bail, how it could be said that there is likelihood of release of detenue on bail ?

(3.) IT is quite relevant to quote Para - 5 of the judgment of Honble Apex Court (Surya Prakash Sharma vs. State of UP) reported in 1994, SCC (Cr.) 1691: