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2009 DIGILAW 351 (JK)

Adil Ahmad Lone v. State Of J. &K.

2009-07-22

MANSOOR AHMAD MIR

body2009
1. Abdul Rehman Lone, father of Adil Ahmad Lone (detenue), has questioned the detention order No.DET/PSA/08/559 dated 17.10.2008, passed by District Magistrate, Baramulla, respondent No.2 herein., whereby detenue, namely, Adil Ahmad came to be detained for a period of 24 months, on the grounds taken in the writ petition. 2. Respondents have filed their reply. 3. Perusal of the record reveals that detenue came to be arrested on 16th of October, 2008 at Baramulla town and on his search arms and ammunition were recovered from his possession. Accordingly FIR No.163/2008 under section 7/25 Arms Act came to be registered against him and on next day i.e. 17th of October, 2008, the detention order came to be passed on the ground that the detenue is involved in anti-national activities and is a close associate of deceased terrorists, namely, Tanveer Ahmad Zargar and Imtiyaz Ahmad Khan. 4. The detaining authority has passed the impugned detention order in breach of all safeguards provided by the Constitution of India read with J&K Constitution and the mandate of Jammu and Kashmir Public Safety Act (hereinafter referred to as "the Act") for the following reasons:- I) The detaining authority had not prepared the grounds of detention before passing the order of detention. In order to pass an order of detention, the existence of grounds of detention is must. It is apt to reproduce para 1st of the detention order:- "Whereas, Sr. Superintendent of Police Baramulla vide his No.CS/PSA/08/13192 dated 16.10.2008 in respect of Adil Ahmad Lone @ Awaiz S/O Abdul Rehman Lone R/O Tawheed Gunj Baramulla Tehsil Baramulla District Baramulla has produced material record such as dossier and other connecting documents in respect of Adil Ahmad Lone @ Awaiz S/O Abdul Rehman Lone R/O Tawheed Gunj Baramulla Tehsil Baramulla District Baramulla." A perusal of the impugned detention order itself indicates that same came to be passed on the basis of dossier and thus is suggestive of the fact that grounds of detention were not in existence at the time of passing of the impugned detention order. II) The detaining authority has the jurisdiction and competence to detain a person at the best for 12 days but it has ordered detention of the detenue for 24 months which is beyond its competence and power. II) The detaining authority has the jurisdiction and competence to detain a person at the best for 12 days but it has ordered detention of the detenue for 24 months which is beyond its competence and power. III) The detaining authority was under a legal obligation in terms of provisions of "the Act" to issue a notice to the detenue for making a representation to it -- District Magistrate and to the government. It was also obligatory upon the detaining authority to specify the authority of the Government to whom the detenue had to make a representation. IV) As per the dossier and record, it appears that the detenue has read up to 8th class, thus it is not known whether the detenue was knowing or conversant with English language. It was duty of the District Magistrate and other authorities to furnish copies of grounds of detention, detention order, dossier and other material -- FIR, seizure memo, copy of charge sheet and challan in the language known to the detenue. V) The detenue is custody and he has not applied for bail as averred in the writ petition. Respondents have not denied the same. Thus it was obligatory upon the detaining authority to spell out the compelling reasons for detaining the detenue in preventive detention. 5. For the foregoing reasons, this petition merits to be allowed. Accordingly this petition is allowed and the impugned detention order No. DET/PSA/08/559 dated 17.10.2008 is quashed and the respondents are directed to release the detenu forthwith unless required in any other case. 6. Registry to return the record of the case to the counsel for the respondents be returned back.