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2018 DIGILAW 235 (JK)

Ab. Rashid v. State of J & K

2018-04-18

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : Dhiraj Singh Thakur, J. The present Habeas Corpus petition has been filed for quashing the order of detention dated 02.06.2017 passed by the District Magistrate, Samba, who, in purported exercise of her powers vested in her under Section 8(1) (a) of the Jammu and Kashmir Public Safety Act, 1978 (for short, Act of 1978), has ordered the detention of the petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order. 2. The order of detention is primarily challenged on the ground that the procedural safeguards as provided in terms of the Act of 1978 and the various pronouncements of the Apex Court had not been complied with at the time of ordering the detention of the petitioner. 3. It was urged that the material relied upon by the respondents while ordering the detention of the petitioner was not supplied to the petitioner neither was he informed of his right to make a representation against the order of detention to the detaining authority. 4. A reference to the communication dated 2.6.2017 addressed by the District Magistrate, Samba to the father of the petitioner, Mureed Baksh, does not reflect that the petitioner was informed that he had a right to make a representation to the detaining authority. In any case, the communication was addressed to the father of the detenue and not to the detenue-petitioner herein. 5. Heard learned counsel for the parties. 6. In State of Maharashtra and Ors. vs. Santosh Shankar Acharya, AIR 2000 SC 2504 , the apex court held that non-communication to the detenue of his right to make a representation to the detaining authority against the order of detention would constitute an infraction of the constitutional right guaranteed to the detenue under Article 22(5) of the Constitution and such a failure would make the order of detention invalid. 7. The aforementioned judgment was followed by a Division Bench of this court in 2017 (3) JKJ 684 [HC] Tariq Ahmad Dar vs. State of J&K and Ors., LPAHC No. 43/2017, decided on 09.06.2017 and the detention order set aside. 8. Testing the facts of the present Case on the touchstone of the law aforementioned, it can be seen that the detenue had never been informed of his right to make a representation against the order of detention before the detaining authority. 8. Testing the facts of the present Case on the touchstone of the law aforementioned, it can be seen that the detenue had never been informed of his right to make a representation against the order of detention before the detaining authority. If that be the position, then such a failure would make the order of detention invalid. Consequently, the order impugned is quashed. The respondents are directed to release the petitioner forthwith if not required in any other case. Needless to say that the official respondents would be at liberty to pass a fresh order after complying with the constitutional and statutory obligations strictly in accordance with law, if need be. 9. Disposed of accordingly.