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2010 DIGILAW 352 (JK)

Shabir Ahmad Wani v. State Of J&K

2010-06-05

Mansoor Ahmad Mir

body2010
1. One, Ghulam Mohammad Reshi, has filed this petition on behalf of Shabir Ahmad Wani S/O Mohammad Abdullah Wani R/O Dalwash Khag, Budgam, and has questioned the detention order No.DivCom-K/Det/04/2009 dated 30.12.2009 passed by respondent No.2, whereby detenue came to be detained in terms of the provisions of Public Safety Act, for short the Act, on the grounds taken in the petition. 2. Respondents have filed reply. 3. Heard. Respondent No.2 issued the impugned order on the basis of communication/ letter made by Sr. Superintendent of Police, Srinagar, dossier and material prepared by the police. Respondent No.2 has not prepared the grounds of detention and thereafter passed the impugned order. Preparation of grounds of detention is a foundation for making the order in terms of the provisions of the Act. It is apt to reproduce first para of the impugned order herein: "Whereas, Sr. Supdt. Of Police, Srinagar vide his letter No.Lgl/Det-2519/09/3955-60 dated 15.12.2009 has produced material record, such as dossier and other connecting documents in respect of Shri Shabir Ahmad Wani @ Dalwash S/o Mohammad Abdullah Wani K/O Dalwash Khag, Budgam." 4. Thus, it can be safely said and held that impugned order came to be passed without preparation of grounds of detention and application of mind. 5. The respondent No.2 has directed to detain the detenue for a period of one year which is beyond his power and competence. 6. There is nothing on the file suggesting the fact that copies of, dossier, grounds of detention and letter of SSP, Srinagar (supra), came to be furnished to the detenue enabling him to make an effective representation. There is nothing on the file to indicate that detenue was made aware to make a representation before the competent authority of the Government. 7. In terms of the dossier, the detenue was already in custody in FIR No. 123/2009 under Section 8/20 NDPS Act, which is non-bailable and in terms of Section 37 of NDPS Act, it is accused who has to show prima facie case otherwise bail is exception and refusal is rule. My this view is fortified by the apex court judgment titled Sayed Abdul Ala v. Union of India & ors, 2007 AIR SCW 6974. It is apt to reproduce paras 19 and 20 of the said judgment hereunder:- "19. The statute, thus, puts limitation on the jurisdiction of the court in the matter of grant of bail. My this view is fortified by the apex court judgment titled Sayed Abdul Ala v. Union of India & ors, 2007 AIR SCW 6974. It is apt to reproduce paras 19 and 20 of the said judgment hereunder:- "19. The statute, thus, puts limitation on the jurisdiction of the court in the matter of grant of bail. They cannot be ignored, by any Court of Law. Several decisions of this Court and of High Court operate in the field. 20. Proper application of mind on the part of the detaining authority must, therefore, be borne out from the order of detention. In cases where the detenue is in custody, the detaining authority not only should be aware of the said fact but there should he some material on record to justify that he may be released on bail having regard to the restriction imposed on the power of the Court as it may not arrive at the conclusion that there existed reasonable grounds for believing that he was not guilty of such offence and that the detenue could not indulge in similar activity, if set at liberty.’" 8. In the given circumstances the impugned order suffers from non-application of mind. 9. In the given circumstances what were the compelling reasons for detaining the detenue are not forthcoming. 10. In view of the above discussion, it is hereby held that detention order merits to be quashed. 11. Accordingly, the petition is allowed. The detention order is, hereby, quashed with the command to the State to release the detenue forthwith provided he is not required in any other case. 12. Registry is directed to return the record of the case to Mr. S.A. Vakil, AAG.