Mohd.Jaffar Mir vs State of J&K through Addl.Chief Secy.Home Srinagar; 2.District Magistrate Budgam

Petitioner Mohammad Jaffar Mir came to be arrested by the Border Security Force at the place known as Khanda, and arms and ammunition in

the nature of one A. K. 56 Rifle, Magazinetwo of AK 56 Rifle and fifty rounds of AK 56 Rifle came to be recovered from him.' Case for the

offence under sections 7/27 Indian Arms Act, as FIR 76/98 police station Chadura, came to be registered against him. The Judicial Magistrate

Chadoora, granted vides the order dated 1.8.1998 bails in the said FIR not only in favor of the petitioner but other three persons indicated therein

as well.

The District Magistrate Budgam on receipt of report from the Superintendent of Police Operations, Budgam, passed the order of detention on 31st

of August 1998 under his No. PSA/DMB/9866, where under by exercise of the powers arising out of section8(2) of the J&K Public Safety Act,

he directed the petitioner's preventive detention for a period of eight months, so as to prevent him from acting in any manner prejudicial to the

security of the State

The grounds of detention state that on the motivation of the Company Commander of the banned HizbuMumineen Organization the petitioner

joined the outfit, whose aim and object is to secede the State of the Jammu and Kashmir from Union of India, by subversive and antinational

activities. The grounds state that in order to resort to armed struggle against the State, the petitioner exfiltrated to POK in December 1991 to

receive arms training and he infiltrated with arms and ammunition in September 1993 and thereafter, indulged in subversive and antinational

activities.

Through this petition, which has been filed by the detenu's father, the order of detention is challenged on the grounds that by nonsupply of the

grounds of detention, the copy of the FIR or the dossier the detenu has been unable to file the effective representation against the detention order,

which in the result of nonapplication of mind as the detaining authority has not assigned any reasons to resort to preventive detention when the

detenu was already in custody of the State for substantive offences covered by the said FIR. The order of detention is further labeled as invalid on

the ground that statutory safeguards as mandated by the Public Safety Act have not been complied with as the matter was not referred to the

Advisory Board within the statutory period nor was it confirmed by the Government within the time limit allowed by the statute.

The counter filed by the respondents gives out that in the security scenario, that prevails, the activities of the detenu were prejudicial to the security

of the State in so far as the detenu's participation/indulgence in violence posed a threat to the security of the State and the public peace and order

whereon the District Magistrate issued the impugned order to prevent the detenu from indulging in the prejudicial activities that could endanger the

security of the State.

From the counter and the record produced for perusal it gets revealed that the order of detention was issued by the District Magistrate on 31st

of August 1998 and the order was approved by the Government on 7th of September 1998. The detenu having been admitted to bail bonds under

the magisterial order was taken into preventive custody under the impugned order on 7th of September 1998. The grounds of the detention were

served on the detenu on 8th of Sept. 1998. The record reveals that the detenu acknowledged under his signature the receipt of the grounds of

detention as also the order of detention on 8th of September 1998. The detenu acknowledged under his signatures that the contents of the grounds

of detention were read over and explained to him in English and Urdu languages, which he understood. The detenu further acknowledged that he

was informed of his right to make the representation to the Government against the detention order. These facts are not only acknowledged by the

detenu under his signatures as true but are sworn to be true through the counter filed by the detaining authority. It is, in the premises, referred to

above, not made out that the procedural safeguards have been in any way infringed by the detaining authority or the Government. The record and

the counter go to shown that not only were the grounds of detention communicated to the detenu but he was also informed of his right as well to

make a representation, against the detention order, to the Government. The record reveals that the detenu was heard in person by the Advisory

Board, which opined within the statutory period on 16th of October 1998, after hearing the detenu in person, in favor of the detention. The

allegation that the constitutional guarantee and the procedural safeguards have been breached in this case is baseless. No illegality or

unconstitutionality can be attached to the impugned order.

The thrust of the petitioner's case is that the order of detention is the outcome of non application of mind by the detaining authority in that the

detenu having been already in custody of the State in FIR 78/98 Police Station Chadoora, the detaining authority has not spelt out in the order of

detention those circumstances or the grounds which compelled him to clamp preventive detention on the detenu. This argument has no force as the

order of detention having been passed on 31st of December 1998 the detenu had secured bails for the substantive offence on 181998 itself. Put in

other words the detenu was not in punitive custody for a substantive offence when the order of detention was passed and executed. The detenu

having been admitted to bails much prior to the passing of the impugned order cannot lead to the inference that the order of detention has been

passed without application of mind. The order of detention has in the circumstances to be read in the perspective that the detenu having been

released on bails for the substantive offence the District Magistrate felt on perusal of the report that in order to prevent the detenu from acting in

any manner prejudicial to the security of the State, his preventive detention was necessary. This was done by the detaining authority only after

having taken note of the antecedent's prejudicial activities of the detenu. The argument is; thus, devoid of any substance that the impugned order of

detention is the result of nonapplication of mind.

All the statutory safe guards were having been adhered to and the detaining authority having applied its mind to the circumstances, which warranted

the preventive detention of the detenu the impugned order, can on no count be assailed. There is no force in this petition, which is accordingly

hereby rejected.