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2012 DIGILAW 423 (JK)

Nissar Ahmad Khanday v. State & Anr.

2012-07-16

MANSOOR AHMAD MIR

body2012
1. Mr. Mohammad Amin Khanday, brother of Nissar Ahmad Khanday detenue herein, has questioned Order No. DIVCOM "K"/21/2011 dated 14.11.2011 passed by the Divisional commissioner, Kashmir, respondent no.2 herein, whereby detenue came to be detained for a period of one year in terms of the Jammu & Kashmir Public Safety Act, 1978 (for short Act), on the grounds taken in the petition. 2. Respondents have filed reply. Petitioner has also filed the rejoinder. 3. Admittedly, detenue was arrested in FIR No. 185/2011 under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act), registered at Police Station Awantipora on 18.08.2011, Though he was already in custody, yet he came to be detained in terms of impugned detention order on 26.11.2011.Why the detention order was not executed with effect from 14.11.2011 to 26.11.2011, is not forthcoming. Thus, the delay has crept-in in executing the impugned detention order. 4. In terms of mandate of Section 37 of NDPS Act, no bail can be granted before hearing the prosecution, provided further that the accused has to prima facie carve out a case that he is innocent. In the given circumstances refusing bail is a rule and granting is an exception. The detaining authority has not taken this aspect in view and passed the detention order in breach of the said provision of law read with the judgment passed by the Apex Court in Sayed Abdul Ala v. Union of India, AIR 2007 SCW 6974 . The same issue subject matter of HCP No. 4/2010 and this Court quashed the detention order. It is apt to reproduce para-6 of the said judgment herein. "6. In terms of the dossier, the detenue was already in custody in FIR No. 123/2009 under section 8/20 NDPS Act, which is non-bailable and in terms of Section 37 of NDPS Act, it is accused who has to show prima facie case otherwise bail is exception and refusal is rule. My this view is fortified by the apex court judgment titled Sayed Abdul Ala v. Union of India and others, AIR 2007 SCW 6974 . It is apt to reproduce paras 19 and 20 of the said judgment 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. It is apt to reproduce paras 19 and 20 of the said judgment 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. 5. This petition merits to be allowed for the reason that the respondents have observed all the safeguards provided by the Act read with Constitution of India as well as Constitution of Jammu &Kashmir in breach for the following reasons. 6. Before issuing the order for detention of a person in terms of the Act, the detaining authority has to peruse the entire record and the material relied upon by the authority concerned for recording satisfaction and has to prepare the grounds of detention. Formation grounds of detention is a pre-condition before passing the detention order, which has not been complied with in this case. The detaining authority has passed the impugned order on the basis of dossier and not on the basis of grounds of detention. It is apt to reproduce para-1 of the detention order. "Whereas, the Superintendent of Police, Awantipora vide his No. Pros/PSA/2011/1363-66 dated has produced material record, such as dossier and other connecting documents in respect of Nissar Ahmad Khan-day S/O Lal Khanday R/oKatpora. Charsoo Tehsil Awantipora Distt. Pulwama". 7. There is nothing on the file to hold that the detaining authority has given cogent reason for detaining the detenue. It is also not coming from the record whether any notice was given to the detenue for making a representation to the District Magistrate or to the Government. Charsoo Tehsil Awantipora Distt. Pulwama". 7. There is nothing on the file to hold that the detaining authority has given cogent reason for detaining the detenue. It is also not coming from the record whether any notice was given to the detenue for making a representation to the District Magistrate or to the Government. There is nothing on the record on which Court can prima facie make an opinion that copies of dossier or other material were supplied to the detenue in terms of mandate of the Act. 8. Admittedly, the detenue was in custody in FIR No. 185/2011 u/s 18 NDPS Act registered at Police Station Awantipora and was not admitted to bail and what were the compelling reasons to detain the detenue under the Act is not forthcoming from the record. 9. Viewed thus, this habeas corpus petition is allowed, the impugned order is quashed and the detenue is directed to be released forthwith, provided he is not involved or required in any other case. 10. Registry is directed to hand over the record to the learned counsel for respondents against proper receipt. 11. Disposed of.