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2006 DIGILAW 29 (JK)

Zakir Hussain v. State

2006-03-07

J.P.SINGH

body2006
1. Petitioner Zakir Hussain Wani, seeks quashing of his detention order No. PSA/DM/JC/05/03 dated 27.7.2005, through the medium of this Habeas Corpus Petition No. 33/2005. 2. It is stated that petitioner was booked in FIR No. 70/2004 under Section, 302/307 R.P.C and sent to Joint Interrogation Centre, Jammu for sustained interrogation. It further comes out from the petition that the petitioner was implicated in another FIR being FIR No. 102/2004 dated 5.7.2004 under Sections 212/121, 122/120-B, 124/124-A R.P.C. Petitioner submits that while he was in judicial lock up at Central Jail Kot Bhalwal, he was served with a copy of communication No. PSA/DM/JC/04/10-11/DM/Doda dated 9.8.2004, whereby he was ordered to be detained under Section 8 of the Jammu and Kashmir Public Safety Act 1978 for a period of one year. 3. It is stated the detention order was quashed in Habeas Corpus petition No. 1046/2004, by this Court. A copy of the order has been placed on the records. The petitioner further submits that after his release on 27.5.2005, pursuant to quashing of his detention, he was again picked up by the officials of respondent No.3 and shifted to Joint Interrogation Centre, Jammu. He was again served with a copy of communication No. PSA/DM/JC/05/12 dated 27.7.2005 being detention order under Section 8 of the Jammu and Kashmir Public Safety Act 1978. 4. It has been specifically pleaded in the petition that petitioner was not supplied the dossiers submitted by SSP, CID CI Jammu, copies of FIR No. 102/2004 and FIR No. 1/2004, which had formed the basis of the detention, thereby depriving him of his right to make effective representation. It is further stated that the representation of the petitioner has not been disposed of. 5. Sh. Arshad Majid Malik, learned counsel for petitioner, submits that the detaining authority has passed the order in a mechanical manner reproducing the dossiers supplied to him by SSP, CID CI Jammu, in his detention order without actually recording his satisfaction for detaining the petitioner. He submits that the detention order is against the provision of Public Safety Act 1978. 6. Sh. B.S. Salathia, learned AAG, while producing the detention records vehemently argued that the petitioner is a militant and his detention order need not be quashed because he has been detained under a valid detention order. 7. He submits that the detention order is against the provision of Public Safety Act 1978. 6. Sh. B.S. Salathia, learned AAG, while producing the detention records vehemently argued that the petitioner is a militant and his detention order need not be quashed because he has been detained under a valid detention order. 7. I have considered the submissions of learned counsel for the parties and gone through the records produced by Sh. B.S.Salathia. Counter affidavit filed by Sh. Yoginder Kaul, Senior Superintendent of Police, CID CI Jammu, records that the petitioner was arrested in JIC case but was thereafter released and subsequently lodged in Central Jail Kot Bhalwal, Jammu on 30.7.2005. 8. It is strange that the District Magistrate, Doda, at the time of issuance of detention order records the petitioner detenue to be in police custody on 27.7.2005, when he issued orders for his detention vide his No.PSA/DM/JC/05/03 dated 27.7.2005 9. I would refer to the two paragraphs of the detention order, which read thus:- "Presently you are arrested in case FIR No. 01/2004 U/S 3 PSSA: 2/3E & IMCO. 3 EAO, 121/122/124-B, 153-A/489-B/489-C/212/216 RPC P/S JIC, Jammu. In view of the above facts, your indulgence in subversive and militancy related activities has been established. Since you are presently in Police custody and there is every apprehension that you will be bailed out from the court of law at any time and then you will again indulge in the said activities." 10. These two contradictory stands of the two authorities make me to believe that the detention order has been passed by the District Magistrate in a mechanical manner and without application of mind. Besides that, the records produced by Sh. B. S. Salathia, do not show that the material relied upon by the District Magistrate, i.e., dossiers and copies of the FIRs referred in the order of detention forming basis of detention have been supplied to the detenue. 11. Non supply of material, i.e, dossiers, copies of FIRs and other material, deprives the petitioner of his constitutional and statutory right to make effective representation against his preventive detention. 12. Section 13 of the Public Safety Act 1978 has, thus, been violated in not supplying the material on which detention order was based. 13. The detention order of the petitioner is, thus, unconstitutional and against the provisions of public Safety Act 1978, which is, accordingly, quashed. 14. 12. Section 13 of the Public Safety Act 1978 has, thus, been violated in not supplying the material on which detention order was based. 13. The detention order of the petitioner is, thus, unconstitutional and against the provisions of public Safety Act 1978, which is, accordingly, quashed. 14. Allowing this petition, it is directed that the petitioner be released from custody, if not required in any other case.