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2011 DIGILAW 261 (JK)

Nisar Ahmad Bhat v. State of J&K & Anr.

2011-05-19

MANSOOR AHMAD MIR

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1. Mohammad Amin Bhat S/O Abdul Rashid Bhat R/O Chursoo Katpora Tehsil Awantipora District Pulwama, has filed this writ petition on behalf of his brother, Nissar Ahmad Bhat (detenue), questioning the detention order bearing No. Division-"K"/PSA-15/2010 dated 29.11.2010 passed by respondent No. 2, Divi­sional Commissioner, Kashmir, Srinagar, on the grounds taken in the petition. Respondents filed the counter and resisted the petition. Heard. Perused the record. 2. The respondents have observed all the safeguards as provided under the provisions of the Public Safety Act read with Constitution of India in breach, for the following reasons. It is beaten law of the land that before passing the impugned detention order, it is mandatory on the part of the detaining authority to examine the material submitted to him by the concerned agency and to prepare grounds of detention. The impugned order discloses that detention order came to be passed without formulating the grounds of detention. It is apt to repro­duce first para of the impugned detention order herein: "Whereas, Superintendent of Police, Awantipora vide his letter No. Pros/PSA/2010/1134-37 dated 25-10-2010 has produced material record, such as dossier and other connecting documents in respect of Shri Nisar Ahmad Bhat S/o Abdul Rashid Bhat R/o Chursoo Katpora Tehsil Awantipora District Pulwama." 3. Thus, it is clear that impugned detention order suffers from non application of mind. 4. Respondents have failed to place on record the documents prima facie indicating that the copies of grounds of detention, dossier and other material was supplied to the detenue enabling him to make an effective representation in terms of the mandate of the Act before the detaining authority or before the Government. In terms of annexure-Pl to the writ petition, petitioner was asked to make a representation but without furnishing the grounds of detention and other material relied upon. 5. Photostat copy of the report of the serving Officer indicates that the contents of the warrant and grounds of detention were read over to the detenue in Urdu/Kashmiri language but it is not known in which language the same were read over to the detenue and the said report nowhere discloses that the material relied upon was made available to the detenue. The matter would have been clinched if there would have been the affidavit of the serving officer. 6. The matter would have been clinched if there would have been the affidavit of the serving officer. 6. The detenue was already in custody in FIR No. 167/2010 U/S18-NDPS (The Narcotic Drugs and Psychotropic Substances) Act P/S Awantipora and had not applied for bail. Even otherwise 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 are reasonable grounds for believing that accused is not guilty of such offence. 7. 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. 8. 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 Sayed 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 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 be 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." 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 provided he is not required in any other case. 11. 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 provided he is not required in any other case. 11. Registry is directed to return the record of the case to Mr. M. A. Thakur, GA.