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2002 DIGILAW 362 (JK)

Mushtaq Ahmad Thokar v. State

2002-11-26

B.L.BHAT

body2002
1. Detenue Mushtaq Ahmad Thokar S/O Abdul Razak Thokar R/O Shouch Kulgam, Kashmir, has sought indulgence of this court through the medium of this writ petition filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution for quashment of detention order No. DMB/PSA/ 2001/5 dated: 27-05-2002. 2. The petitioner has called in question detention of the detenue on various grounds adumbrated in this petition. 3. On admission of this petition, respondent District Magistrate. Budgam, has filed his counter affidavit wherein inter-alia he has stated in the preliminary objections styled as Factual back ground that the detenue was ordered to be detained under Public Safely Act vide order No. DMB/PSA/5 of 2001 dated: 27-05-2002 for his past activities and inclination and in order to prevent him from activities which are prejudicial to the security of the State. In para No. 1 of the clause headed as Factual Back ground, he has also stated that the order of detention was passed by the Answering respondent and was approved by the Government on 26-06-2002. Thus on the own showing of the detaining authority, the impugned order of detention came to be passed on 27-05-2002 and same came to be approved by the Government on 26-06-2002 when mandatory requirement of sub-section (4) of Section 8 of the Public Safety Act provides that no order passed under section 8 of the Public Safety Act shall remain in force for more than 12 days after making the order thereof, unless in the meantime it has been approved by the Government. 4. As indicated above, the impugned order of detention was issued by the District Magistrate, Budgam under the provisions of the Public Safety Act of 1978, on 27-05-2002 and same admittedly has been approved by the Government on 26-06-2002, which is admittedly after 12 days of the issue of the order by the District Magistrate. On this count alone, the order of detention is vitiated. 5. The detaining authority while detaining a person/citizen under preventive detention, has to follow the procedure and constitutional safeguards prescribed by the law strictly and any deviation thereof renders the detention bad. On this count alone, the order of detention is vitiated. 5. The detaining authority while detaining a person/citizen under preventive detention, has to follow the procedure and constitutional safeguards prescribed by the law strictly and any deviation thereof renders the detention bad. In the case in hand, the order of detention has been passed on 27-05-2002 and approved on 26-06-2002 i.e. after a period of thirty days from the date of its issue by the detaining authority, therefore, the detention order is against Section 8 (4) of the J&K Public Safety Act and against Article 22 (7) (b) of the Constitution of India. 6. Viewed thus, the order being bad in law cannot stand the judicial scrutiny. The petition is accordingly allowed and the order of detention bearing No. DMB/PSA/5 of 2002 dated: 27-05-2002 is quashed and the respondents are directed to release the detenue from preventive detention unless otherwise required in any other substantive offence/case.