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2011 DIGILAW 31 (JK)

Farooq Ahmad Lone v. State & Anr.

2011-02-08

MOHAMMAD YAQOOB MIR

body2011
1. By the instant petition quashment of order of detention impugned bearing No. 36/DMP/PSA/10 dated 28.9.2010 is sought. 2. Learned counsel for the petitioner would contend that the order of detention is bad so is liable to be quashed on the following grounds: 1) The provisions of Jammu & Kashmir Public Safety Act have not been adhered to while passing the order of detention. 2) The order of detention suffers from non-application of mind. 3) Non supply of the material forming base for the grounds of detention. 4) Grounds of detention have not been read over and explained to the detenue. 3. Learned counsel for the respondents would contend that the Detaining Authority has appreciated/the entire material and it is only then the order of detention has been passed, further added that the grounds of detention itself are indicative of the fact as to how detenue has been acting prejudicial to the mainte­nance of public order. Considered. 4. Section 8 of the Jammu & Kashmir Public Safety Act (hereinafter referred to as "the Act") clothes Divisional Commissioner and the District Magistrate with the powers to pass orders of detention. The said power is controlled by Section 8(4) of the Act which provides that the officer passing the order of detention shall report the fact to the Government together with the grounds on which the order has been made and such order shall remain in force for a period of 12 days unless in the meantime same is approved by the Government. 5. In the instant case order of detention has been passed on 28.9.2010, same has been approved by the Government on 06.10.2010, that means sub-section 4 of Section 8 of the Act has been complied with. 6. In terms of Section 13 of the Act, the grounds of detention are to be communicated to the detenue at an earliest so as to enable him to make a represen­tation to the Government. 7. The records as produced reveal that on 28.9.2010, communication has been addressed to the detenue for making representation to the Government. The records further reveal that on 29.9.2010 the grounds of detention have been explained to the detenue and the copy has also been handed over to him along with relevant records and it is also recorded that he has been informed that he can represent to the Government against the order of detention. The records further reveal that on 29.9.2010 the grounds of detention have been explained to the detenue and the copy has also been handed over to him along with relevant records and it is also recorded that he has been informed that he can represent to the Government against the order of detention. That means within specified time as envisaged by Section 13 of the Act detenue has been informed about his right to make representation. 8. In terms of Section 15 of the Act, the Government is required to place before the Advisory Board, within four weeks from the date of detention, the grounds of detention, the representation, if any, made and the report of the officer passing the order of detention. 9. The records would reveal that on 25.10.2010, the referred material has been placed before the Advisory Board and the Advisory Board has also recorded the opinion in favour of detention on 3.11.2010. Thereafter in terms of Section 17(1) of the Act, Government has fixed the period of detention as 12 months, which means that all the relevant provisions as were required to be adhered to have been fully complied with; therefore, ground projected by the petitioner being without any basis is rejected. 10. Next it was contended by the learned counsel for the petitioner that the order impugned suffers from non-application of mind but the records would reveal that the Detaining Authority has taken into consideration the records based on which the grounds of detention have been formulated and the formulated grounds of detention would indicate as to how the detenue has been uncontrollable. As many as 12 cases have been registered against the detenue for commission of various offences which include Unlawful Activities Act. The Detaining Authority while formulating the grounds of detention has given the numbers of FIRs regis­tered and the Sections applicable to the acts and offences committed by the detenue. Application of mind on the par t of Detaining Authority is quite apparent. The order does not suffer from any non-application thereof. The detailed grounds of detention by itself is a clear answer about the application of mind on the part of Detaining Authority. 11. Application of mind on the par t of Detaining Authority is quite apparent. The order does not suffer from any non-application thereof. The detailed grounds of detention by itself is a clear answer about the application of mind on the part of Detaining Authority. 11. The next contention about non-furnishing of material to the detenue is refuted as the record reveals that the grounds of detention have been furnished to the detenue and he has been informed about the right to make representation. He has not made any representation at all. In case he would have made representation and if same would have been rejected, it could be safely said that the non-supply of the material forming base for the grounds of detention has disabled the detenue from making an effective representation and it could be a ground available. This argument in such circumstances is inconsequential. 12. Next it is contended that the grounds of detention have not been explained and read over to the detenue is also belied by record as the certificate available on the record as produced clearly indicates that the grounds of detention have been read over and explained, both in Urdu and Kashmiri language, to the detenue which he has understood fully and has acknowledged the same by singing the certificate. This position has not been controverted. Furthermore, even the detenue could in the representation make mention that the grounds were not explained to him. What prevented detenue from making such representation when he was given chance to make representation against the order of detention, has not been explained. 13. For the stated reasons petition being devoid of merit is dismissed. 14. Detention record be returned to the learned counsel for the respondents.