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2011 DIGILAW 354 (JK)

Ab. Noorani v. State Of J&K

2011-07-20

Hasnain Massodi

body2011
1. Heard. Considered. Challenge to order No.PSA/2010/27 dated 07.01.2010, (herein after "detention order") whereby District Magistrate, Udhampur -- respondent No.2 herein, has placed one Shri Abdul Noorani son of Mohd Hussain Bakerwal resident of Palie Basantgarh, Tehsil Ramnagar, District Udhampur (herein after referred to as "detenue") under preventive detention, is bound to succeed for the reason that the detaining authority has directed preventive detention of the detenue for a period of two years. The detaining authority having regard to his status in the administrative set up is expected to know that the detaining authority lacks power and jurisdiction to determine the period of detention of the detenue. Such a power in terms of Section 8(4), J&K Public Safety Act 1978, belongs to the Government. The detaining authority by deciding on period of detention has violated Constitutional safeguards available to the detenue under Article 22(5), Constitution of India. It needs no emphasis that once detenue is made aware that his period of detention is decided at the outset and he is directed to be detained for the maximum term of detention provided under section 18 of Act, the detenue would feel dissuaded from representing against his detention. 2. This apart, perusal of detention order reveals that the material relied upon by the detaining authority while passing detention order has not been supplied to the detenue. Perusal of the grounds of detention reveal that detenue's alleged involvement in case -- FIR No.14/96 under section 307/124-A RPC, 3/25 Arms Act; FIR No.16/96 under section 392 RPC, 3/25 Arms Act; FIR No.4/97 under section 307/124-A RC, 3/25 Arms Act; FIR No.6/97 under section 307/124-A RPC, 3/25 Arms Act and a number of other criminal cases detailed in the grounds of detention heavily weighed with detaining authority while recording subjective satisfaction that the detenue was to be placed under preventive detention. The copies of FIRs or statements of witnesses under section 161 Cr.P.C. have not been, as is evident from the detention record, made available to the detenue, so as to enable detenue to convince the detaining authority and the Government that his prevention detention was unwarranted. 3. Furthermore, the detaining authority has not informed the detenue that independent of his right to represent against the detention to the Government, he also has a right to file representation before the detaining authority. 3. Furthermore, the detaining authority has not informed the detenue that independent of his right to represent against the detention to the Government, he also has a right to file representation before the detaining authority. The detention order in question thus violates Constitutional and Statutory rights available to the petitioner under Article 22(5), Constitution of India and Section 13 J&K Public Safety Act. 4. Viewed thus the petition is allowed and detention order No. PSA/2010/27 dated 07.01.2010, quashed. The respondents are directed to release the detenue forthwith from the preventive detention, ordered under order No. PSA/2010/27 dated 07.01.2010. 5. Detention record be returned to counsel for respondents. Disposed of.