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2011 DIGILAW 739 (JK)

Mehraj-ud-din Gojary v. State & Ors.

2011-12-30

MOHAMMAD YAQOOB MIR

body2011
1. Order of detention bearing No. 12/DMB/PSA of 2011 dated 14.09.2011, issued by respondent No.2, is contended to be in utter violation to the law and the liberty of the detenue. 2. Perusal of the petition would indicate that the detenue had been detained vide detention order dated 03.02.2011, same was quashed by this Court on. 25.08.2011. However, instead of releasing the detenue, by virtue of order of detention impugned has been detained and directed to be lodged in District Jail, Udhampur, hence the instant petition. 3. Nothing has been brought on record to show that the detenue from the date of quashment of detention order dated 03.02.2011 till the passing of impugned detention order dated 14.09.2011 has indulged in any activity so as to justify the preventive detention. It appears that on imagination order of detention impugned has been passed which is supported by the position as reflected in the grounds of detention wherein it is recorded that there is possibility of the detenue to indulge in activities prejudicial to the security of the State. On the basis of possibilities and surmises order impugned has been passed which is impermissible as the same offends the guarantee of liberty. 4. The preventive measures may be unavoidable so as to deter a person from indulging in the activities which are prejudicial to the security of the State but exercise of such power also carries a duty to ensure that the safeguards available for respecting the personal liberty are also respected. The liberty of a person is precious, curtailment thereof has to be by way of exception, that too when cogent grounds are available and then even if cogent grounds are available, still the procedural safeguards are to be observed. 5. Detenue has a guaranteed right of representing against the detention and to show his innocence and same right flows from Article 22(5) of the Constitution. That right can be effectively made use of only when material forming basis for the detention are furnished to the detenue. The records as produced nowhere indicate that the material as has been referred to in the grounds of detention has been furnished to the detenue. At least in connection with criminal cases such as FIR Nos.192/2010,217/2010 and 245/2010, the statements recorded under Section 161 Cr. P.C were required to be furnished to the detenue which admittedly have not been furnished. The records as produced nowhere indicate that the material as has been referred to in the grounds of detention has been furnished to the detenue. At least in connection with criminal cases such as FIR Nos.192/2010,217/2010 and 245/2010, the statements recorded under Section 161 Cr. P.C were required to be furnished to the detenue which admittedly have not been furnished. From the records it is clear that only grounds of detention (three leaves) are shown to have been furnished to the detenue, therefore, it is clear that the material which has been made basis for formulation of the grounds of detention has not been furnished to the detenue. 6. Further it is mentioned that the grounds of detention were read over to the detenue but the officer who is shown to have read over the grounds of detention to the detenue has not filed any affidavit so as to support the same position. 7. While summing up what will emerge is that for maintaining the order of detention the requirement of respecting the safeguards is imperative but in the instant case disablement of the detenue from making effective representation, would lead to only one conclusion that the order of detention is not in accordance with law, as such, is set aside. Detenue is directed to be released provided not required in connection with any other case. 8. Detention records as produced be returned to the learned counsel for the respondents.