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2011 DIGILAW 258 (JK)

Abdul Hamid Hanga v. District Magistrate & Anr.

2011-05-19

MOHAMMAD YAQOOB MIR

body2011
1. Order of detention bearing No. DMS/PSA/142/2010 dated 08.02.2011, passed by District Magistrate, Srinagar, has been confirmed by the Government in exercise of powers vested under Section 17(1) of the J&K Public Safety Act, 1978. Dissatisfied with the order of detention, father of the detenue has filed the instant petition seeking quashment of the same. 2. Grounds of detention are suggestive of the fact that: the detenue has been involved in activities prejudicial to the maintenance of public order but has been acting very discretely. On 28.6.2010 he was found at Shikargah Hokarsar National Highway leading the unruly mob on way to Sopore and resorted to heavy stone pelting, in the process was photographed. In connection there of, case had been registered as FIR No. 159/2010 for the commission of offences under Section 148, 149, 336, 341, 353, 427, 307, 435, 120-B RFC, thereafter was arrested on 1.2.2011. Detention of the detenue in the opinion of the Detaining Authority was found necessary. 3. First contention of the learned counsel for the petitioner is that the detenue has been deprived of making representation because he was furnished only copy of the grounds of detention and the copy of dossier. The material forming base of the dossier has not been furnished to him which is an essential requirement. It is also added that in the grounds of detention, it has been mentioned that the detenue has been actively involved in various activities discretely but no material to support such allegation is available on the record what to speak of furnishing of such material to the detenue. Detenue has every right to represent against the order of detention and to fully explain his position of being innocent. 4. The submission as made has a prevailing force because perusal of the detention record as produced is indicative of the fact that only copy of grounds of detention and the copy of dossier is shown to have been furnished to the detenue. The material forming base for the dossier has not been furnished. It is also a fact that there is nothing on record to show that the detenue in any way has been acting discretely so as to disturb public order and in case it would have been so, then police would have nabbed him and there could be no impediment in taking action against him. It is also a fact that there is nothing on record to show that the detenue in any way has been acting discretely so as to disturb public order and in case it would have been so, then police would have nabbed him and there could be no impediment in taking action against him. The inference is that no such material has been as Editable or any activity has been noticed. 5. The detenue has been noticed to have been leading the unruly mob on 28.6.2010 but has been arrested on 1.2.2011, when the case has been registered in the month of June, 2010 itself. What has happened is that on the basis of identifica­tion of the detenue pursuant to some photograph, the detenue has been pinpointed and arrested and even the copy of that photograph has not been provided to the dctenue so as enable him to explain the position existing therein. 6. Next contention of learned counsel for the petitioner is that in essence detenue is shown to have been involved in case FIR No. 159/2010 i.e. relatable to the occurrence of 28.6.2010, thereafter nothing is shown a attributable to the detenue. Order of detention becomes imperative when a person continuously acts prejudi­cially to the security of the State or the public order etc. but nothing is shown attributable to the detenue from June, 2010 till 1.2.2011 i.e. for more than seven months. When a person was not involved in any such activity, there was no requirement of passing the order of preventive detention. 7. The submission made is well founded because as per records produced, it is nowhere shown that the detenue in any way or in any manner has acted prejudicially to the maintenance of public order nor any other act is attributable to him from 28.6.2010 up to 1.2.2011 i.e. the date of order of detention. When it is so, what was the requirement of passing the order of detection, has remained to be answered. 8. Preventive measure by invoking powers under.Section 8 of the J&K Public Safety Act is aimed at deterring a person from acting in any manner prejudicial to the security of the State or maintenance of public order etc. The preventive order is always for a certain period. It is not by way of punishment. 8. Preventive measure by invoking powers under.Section 8 of the J&K Public Safety Act is aimed at deterring a person from acting in any manner prejudicial to the security of the State or maintenance of public order etc. The preventive order is always for a certain period. It is not by way of punishment. When the detenue is not shown to have done anything from June, 2010 till 1.2.2011, there could be no reason for resorting to preventive measures. 9. Another contention of learned counsel for the petitioner is that the detenue was shown arrested in connection with case FIR No. 159/2010. He neither had applied for bail nor he was released on bail, how the Detaining Authority has inferred that there is likelihood of the detenue being admitted to bail, is not forthcoming. In such situation, if the order of detention is to be passed, then the Detaining Authority has to record cogent reasons so as to show compulsion for passing of such order of detention. It is this situation which has been attempted to be neutralized by recording that there is likelihood of the detenue being admitted to bail. 10. Learned counsel for the petitioner further contended that even the copy of the order of detention passed by District Magistrate has not been furnished to the detenue which too is a serious lapse which in turn infringes the right of the detenue. 11. The cumulative effect of the aforesaid discussion leads to only one conclu­sion i.e. the order of detention impugned is not valid, as such, is quashed. The detenue, namely, Omar Hamid Hanga S/O Abdul Hamid Hanga R/O Gadyar Zainakadal Srinagar is ordered to be released forthwith provided he is not required in connection with any other case. Detention records as produced shall be returned back to the learned counsel for the respondents.