1. Gh. Rasool Bhat, father of the detenue-Mukhtar Ahmad Bhat, has questioned the detention order No. Div-Com-"K"/PSA-12/2010 dated 29.09.2010 passed by Divisional Commissioner, Kashmir, 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 the counter and resisted the petition. 3. It is worthwhile to mention here that as per grounds of detention the detenue is allegedly involved besides other offences, in the commission of offence under section 15/18 of NDPS Act. The said offence is a special offence and is to be tried by a Special Judge. In terms of Section 37 of NDPS Act, no bail can be granted unless prosecution is given an opportunity to oppose the bail application and the court has to record satisfaction that there at reasonable grounds for believing that he is not guilty. 4. The aforesaid provision of law puts limitations on the jurisdiction of the court in the matter of grant of bail. It contains fetters, which cannot be ignored by any court of law. 5. It appears that said provision of law has not been taken into consideration by the detaining authority while passing the impugned detention order, thus, it can be safely said that it suffers from non-application of mind. My this view is fortified by the apex court judgement titled Saved Abdul Ala v. Union of India & ors, 2007 AIR SCW 6974. It is apt to reproduce paras 19 and 20 of the said judgement hereunder:- ".19. The statute, thus, puts limitation on the jurisdiction of the court into matter of grant of bail. They cannot be ignored by any Court of Law. Severa decisions of this Court and of High Court operate in the field. 20. Proper application of mind on the part of the detaining authority mt therefore, be borne out from the order of detention.
They cannot be ignored by any Court of Law. Severa decisions of this Court and of High Court operate in the field. 20. Proper application of mind on the part of the detaining authority mt 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 be some material on record to justify that he may be released on bail having regard to the restriction imposed on I power of the Court as it may not arrive at the conclusion that there existe 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." 6. It also appears that while passing the detention order, the detaining authority has not spelled out the compelling reasons for detaining the detenue in preventive detention despite of the fact that detenue was in custody. 7. There is nothing on the file suggesting the fact that the detenue was aske by detaining authority to make a representation before it or before the Governme by spelling out the authority of Government. Thus, petitioner stands deprived of making representation. 8. The copies of grounds of detention, dossier and other material have not been supplied to the detenue not to speak of providing the translated script of documents in the language known to the detenue. 9. In view of the above discussion, it is hereby held that detention order merits to be quashed. 10. Accordingly, the petition is allowed. The detention order is, hereby, quashed with the command to the State to release the detenue forthwith provide he is not required in any other case. 11. Registry is directed to return the record of the case to Mr. A. M. Magray Sr.AAG.