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2008 DIGILAW 61 (JK)

Assadullah v. State

2008-03-05

J.P.SINGH

body2008
1. Mr. Assadullah has filed this writ petition through his father Mohd. Shafi, seeking quashing of District Magistrate Jammus Order No. 07/PSA of 2007 dated June 30, 2007, detaining him under Section 8 of Jammu and Kashmir Public Safety Act, urging inter alia that despite registration of F.I.R No. 1/2007 under Sections 147/124-A RPC, on the basis whereof, he had been ordered to be detained in preventive custody, no efforts had been made by the police to question him in connection with the F.I.R or to arrest him thereunder although he had all along been available at his residence. Denying his involvement in F.I.R No. 1/2007, he says that detention order issued by the learned District Magistrate in June 2007 had remained unexecuted for more than 70 days and in view of the unexplained delay in execution of the detention warrant, his detention was illegal. His further grievance is that material relied upon by the detaining authority had not been supplied to him thereby depriving him of the statutory protection available to him under the Jammu and Kashmir Public Safety Act. 2. Learned Counsel appearing for the detenu submits that non-execution of the detention order for more than two months renders the detention unsustainable and non-supply of material relied upon by the detaining authority to the detenu deprives him of his right to make effective representation against his detention to the Government thereby rendering his detention unconstitutional. 3. Learned State Counsel, on the other hand, justifies the detention order saying that while attending public rally of All Party Hurriyat Conference of Separatist Leader Sayeed Ali Shah Gilani at Shaheedi Chowk, Jammu, the petitioner had made pro-freedom and anti-India slogans asking the youth to fight for total independence of the State of Jammu and Kashmir, and in that view of the matter his detention would not warrant any interference. Learned counsel submits that all material relied upon by the detaining authority had been supplied to the petitioner and he had not thus been prejudiced in any manner whatsoever in making representation against his detention to the Government. 4. I have considered the submissions of learned counsel for the parties and perused the records which were made available by the learned State Counsel. 5. The records produced by learned State Counsel speak of supplying only grounds of detention running over two leaves to the petitioner. 4. I have considered the submissions of learned counsel for the parties and perused the records which were made available by the learned State Counsel. 5. The records produced by learned State Counsel speak of supplying only grounds of detention running over two leaves to the petitioner. Barring the grounds of detention, no other material, such as police dossier, and copies of the F.I.Rs mentioned in the grounds of detention, appear to have been supplied to the detenu. 6. This lapse of the respondents in not supplying the police dossier and copies of the F.I.Rs, mentioned in the grounds of detention, would, therefore, deprive him of his statutory right guaranteed to him under Section 13 of the Jammu and Kashmir Public Safety Act, 1978, to make effective and meaningful representation against his detention, for a meaningful representation may not be contemplated in the absence of detenus having been apprised about and supplied, the material which had weighed with the detaining authority while directing his detention in preventive custody. 7. Petitioner had specifically pleaded in his petition about the lapse of the respondents in not executing the detention warrant issued on June 30, 2007, till September 10, 2007, whereas the petitioner had all along been at his residence and had not absconded at any point of time. 8. Respondents, for the reasons best known to them, have not cared to deal with, much less deny the specific averment made by the petitioner in his petition. 9. Omission of the respondents to explain the delay in execution of the detention warrant for over a period of 70 days when the petitioner is stated to have all along been available at his place, goes to the very root of the matter demonstrating the manner in which the respondents had exercised power under Section 8 of the Jammu and Kashmir Public Safety Act. 10. In view of the law laid-down by Honble Supreme Court of India in SMF Sultan Ab. Kader versus Jt. Secy., To Govt. 10. In view of the law laid-down by Honble Supreme Court of India in SMF Sultan Ab. Kader versus Jt. Secy., To Govt. of India and Ors., reported as (1998) 8 SCC, 343 and K.P.M. Basheer versus State of Karnataka and anr., reported as (1992) 2 SCC, 295, and in the absence of any stand taken by the respondents regarding their having made serious efforts to execute the order and apprehend the petitioner, the detention of the petitioner cannot be justified, for unreasonable and unexplained delay in executing the detention order creates a serious doubt about the genuineness of the power exercised by the detaining authority for immediate detention of the person sought to be kept in preventive custody, in order to prevent him from carrying on his alleged activities prejudicial to the security of the State. Non-execution of detention warrant, without any plausible explanation for its non-execution snaps the live and proximate link between the grounds of detention and purpose of detention. 11. Petitioners detention under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, has not thus been justified by the respondents. 12. For all what has been said above, the detention of the petitioner by the District Magistrate, Jammu, is held to be violative of Section 13 of the Public Safety Act and Article 22(5) of the Constitution of India. 13. Allowing this petition, District Magistrate Jammus Order No. 07/PSA of 2007 dated 30-06-2007 is, accordingly, quashed and a direction issued to the respondents to set him to liberty forthwith, if not required in any other case. 14. Detention records be returned to the State Counsel.