Ab. Rashid Lone vs State of Jammu & Kashmir and Another

Mansoor Ahmad Mir, J.—Mima Banoo wife of the detenue, namely Abdul Rashid Lone S/O Gh. Ahmad Lone R/O Sumlar Tehsil

Bandipora District Baramulla, has invoked the jurisdiction of this Court for quashing the detention order bearing No. Del/PSA/06/309 dated

12.07.2006 passed by District Magistrate, Baramulla, on the grounds taken in the writ petition. Respondents have filed counter. Heard. Perused.

Considered.

Perusal of the record reveals that impugned detention order came to be passed on 12.07.2006 but came to be executed on 26.07.2006, thus

delay has crept in execution of the detention order which violative of the provisions contained under the Public Safety Act.

There is nothing on the file suggesting the fact that copies of FIR, dossier, seizure memo and other documents were supplied to the detenue in

order to make an effective representation. Thus, on this count, the detention order is bad.

In Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, the Apex Court has observed as under:

The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds

are based flows from the right given to the detenue to make a representation can be made and the order of detention can be assailed only when all

the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed

and copies thereof are supplied to the person detained in his own language.

There is also nothing on the file suggesting the fact that notice was served upon the detenue for making a representation in terms of the

provisions contained under the Jammu & Kashmir Public Safety Act.

The detaining authority while passing the detention order has not spelled out the compelling reasons for detaining the detenue in preventive

detention despite of the fact that detenue was in custody. Thus, on this ground the detention order needs to be quashed.

The Apex Court in a judgment reported in AIR 1995 SCW 1841 has held as under:

When the above principles are applied to the facts of the instant case, there is no escape ""from the conclusion that the impugned order cannot be

sustained. Though the grounds of detention indicate he detaining authority awareness of the fact that the detenue was in judicial custody at the time

of making the order of detention the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support

of the averments made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious

offences causing threat to public order. To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious

offences causing threat to public order, solely on the basis of a solitary murder cannot be said to be proper and justified.

Having glance of the above discussion, the petition is allowed, detention order is quashed with the command to the State to release the detenue

forthwith provided he is not required in any other case.

Registry is directed to return the record of the case to Mr. J.I. Ganaie, GA.