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2016 DIGILAW 374 (JK)

Javaid Ahmad Wani v. State

2016-07-19

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. Impugned is the order No.07/DMK/PSA/2016 dated 01.04.2016, issued by District Magistrate, Kulgam, where-under detenue has been detained and lodged in District Jail, Kathua. 2. Learned counsel for the petitioner highlighted the two opening lines of the impugned order of detention which read as under: Whereas, on the basis of grounds of detention placed before me by the Sr. Superintendent of Police Kulgam. While insisting upon the wording of the order, submitted that the District Magistrate-respondent No.2 has not himself formulated the grounds of detention. 3. It has to be made clear that for depriving a person of his liberty, which is guaranteed under Article 21 of the Constitution of India, the important inbuilt safeguards are to be strictly respected. Any infraction of such safeguards renders the order of detention invalid. The Detaining Authority has an obligation to examine the material collected by the police agencies and then to derive subjective satisfaction so as to order detention. In other cases, technical defects may be rectifiable but in preventive detention cases technicalities are to be valued in the background of the object of guarantee to the personal liberty. Base for order of detention is grounds of detention. When the same are not formulated by the detaining authority, same shakes the base, as a result thereof, whole edifice crumbles down. 4. It was rightly pointed by the learned counsel for the petitioner that in the grounds of detention it has been clearly indicated that as against detenue cases FIR Nos. 03/2016 P/S Kulgam and 67/2016 P/S Qazigund have culminated in presentation of charge sheet (challan) before the Court of law and, as such, are sub-judice. 5. It has been highlighted that the wording employed in the grounds of detention is such which absolutely shows lack of application of mind. Formulation of grounds of detention by District Magistrate is negated by the language of the order of detention wherein it is recorded that on the basis of grounds of detention placed before me by the Sr. Superintendent of Police, Kulgam. 6. District Magistrate appears to have simply copied the dossier as prepared by the Police Agency with change of words here and there and then has passed the order of detention. Superintendent of Police, Kulgam. 6. District Magistrate appears to have simply copied the dossier as prepared by the Police Agency with change of words here and there and then has passed the order of detention. District Magistrate has slipped in examining the material, has also slipped in not considering the number of cases registered against the detenue and the position that no motion for bail has been laid nor bail has been granted so far. In addition thereto, has tried to intermingle the words so as to justify the order of detention. 7. It has to be borne in mind that if a person is acting in any manner prejudicial to the security of the State or maintenance of public order, he has to be dealt with iron hand. When a person is a trouble-shooter and makes life of others uncomfortable, then there is law to deal with such a person. The authorities while exercising power under Public Safety Act have to strictly follow the rule of law. Any lapse on the part of Detaining Authority in not following the proper procedure and in not respecting the safeguards available to the detenue, renders the order of detention as invalid and the desired object gets defeated. 8. Another important situation which has emerged is that by detaining the detenue the progress of the trial of the cases pending against him gets hampered. If there is real seriousness, what prevents the authorities concerned from pursuing the cases pending before the courts of law where the detenue can be denied release on bail or can be convicted, then resort to any preventive measures may not be required. All this would suggest that there is complete non-application of mind, which in turn renders the impugned detention order unsustainable, as such, is quashed. Custody of the detenue shall be governed by the orders as shall be passed by the trial court where the two criminal cases referred to above are pending. 9. Disposed of as above. 10. Record as produced be returned to the learned AAG.