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2009 DIGILAW 358 (JK)

Tahir Farhat Shah v. State

2009-07-27

J.P.SINGH

body2009
1. Tahir Farhat Shahs detention vide District Magistrate, Baramullas order no.DET/PSA/08/582 dated December 28, 2008 has been questioned by this Petition on the grounds that the material relied upon by the District Magistrate was not supplied to the detenue thereby depriving him of his statutory right to make effective representation to the Government against his detention and that there were no compelling reasons for his detention when the detenue was already in police custody. Another ground projected against the Detention Order is that the Detention Order issued on December 28, 2008 had remained un-executed till January 9, 2009, for no good reasons. 2. Justifying the detention, the learned State counsel urged that no prejudice was caused to the detenue for non-supply of the material, in that, basic material relied upon by the Detaining Authority stood supplied to the detenue when he was delivered the grounds of detention. 3. Learned counsel justified the detention saying that the activities of the petitioner warranted his detention in preventive custody to prevent him from acting in any manner prejudicial to the security of State. 4. I have considered the submissions of learned counsel for the parties and gone through the detention records made available by the learned State counsel. 5. The District Magistrate indicates in the Detention Order that he had satisfied himself, on the basis of the Police Dossier and the connecting documents, sent to him by the Senior Superintendent of Police District Baramulla vide his no.CS/PSA/08/17541 dated 27.12.2008 that it was necessary to prevent the detenue from acting in any manner prejudicial to the security of the State. 6. The Police Dossier and other connecting documents including copy of the FIR no.317/2008 registered at Police Station, Sopore which had weighed with the District Magistrate to direct the detention, as indicated by the records, were not supplied to the detenue as only grounds of detention running over two leaves are shown to have been supplied to him, as is so indicated by the receipt executed by the detenue in this behalf. 7. It is, thus, established that all the documents which had weighed with the District Magistrate while directing the detention have not been supplied to the detenue. 7. It is, thus, established that all the documents which had weighed with the District Magistrate while directing the detention have not been supplied to the detenue. This omission of the respondents, deprives the detenue of his right to make effective representation against the detention, for representation in terms of Section 13 of the Jammu and Kashmir Public Safety Act cannot be contemplated in the absence of the records on the basis whereof the grounds of detention are stated to have been drawn. 8. That apart, the grounds of detention are found to be vague and ambiguous, in that, no date, month or year of the activities attributed to the detenue warranting his detention has been mentioned in the grounds of detention. The District Magistrate has not indicated in the grounds of detention that the detenue, if released from custody would indulge in activities prejudicial to the security of State. 9. All this indicates non-application of mind by the District Magistrate in directing the petitioners detention which has been ordered just in a mechanical fashion. 10. For all what has been said above, the petitioners detention is found to be arbitrary and in violation of Article 22(5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act. 11. Accordingly, quashing District Magistrate Baramullas order no. DET/PSA/08/582 dated 28.12.2008, Tahir Farhat Shah son of Ghulam Mohammad Shah resident of Jamia Qadeem, Tehsil Sopore, District Baramulla is ordered to be set to liberty forthwith, if not required in any other case. 12. The Detention records be returned to the State counsel.