Ab. Rashid Bhat vs State of Jammu & Kashmir and Others

Muzaffar Hussain Attar, Judge

While adjourning the case on 01.06.201C, respondents were required to keep record available on the next date. Record has not been

produced. The matter pertains to liberty of a citizen of the State and Article 21 of the Constitution of India casts a duty on all concerned to ensure

that no person is deprived of his life and personal liberty except in accordance with the procedure established by law. Article 22 of the Constitution

also provides safeguards to a person who is deprived of his personal liberty. All the organs of the State are duty bound to follow the mandate of

these constitutional provisions which fall in part-Ill of the Constitution of India as applicable to Sate of Jammu and Kashmir.

Non appearance of learned counsel for petitioner in liberty matters will not prevent this Court to consider the case of the petitioner on its merits

in accordance with the mandate of law.

This Court being constitutional Court is duty bound to uphold the constitutional provisions and other provisions of law and as sentinel of

constitutional rights of the people is duty bound to ensure that a person is not deprived of his personal liberty in breach of procedure established by

law as also in violation of constitutional safeguards. It is in this backdrop that this case is considered on its merits even in absence of learned

counsel for petitioner.

Heard learned counsel for the respondents. Considered the matter.

Petitioner has been ordered to be detained by respondent No. 2 vide order No. DM/GBL/PSA/01/2010 dated 09.02.2010. Learned counsel

for respondents submitted that in view of the alleged activities indulged into by the detenu, it has become necessary to detain him in accordance

with the provisions of J&K Public Safety Act, 1978 (for short Act of 1978). Learned counsel submitted that remaining at large of the detenue

would cause serious prejudice to public order and the competent statutory authority, in the circumstances obtaining in this case, had no option but

to detain the detenu under the provisions of Act of 1978. It is further submitted that statutory protections available to the detenu have been

complied with.

In the petition, it is averred that S.T.F, Kangan arrested the detenu from his residence on 04.12.2009, and was thereafter lodged in nearby

Interrogation Centre. It is also pleaded that detenu was shifted to Police Station, Kangan and was implicated in FIR No. 170/2009 u/s 7/25, Arms

Act. It is also pleaded that detenue was ordered to be enlarged on bail in the aforementioned FIR on 09.01.2010. This petition is filed inter alia on

the grounds that the factum of the petitioner having been granted bail is not brought to the notice of the detaining authority; the dossier and material

relied upon and considered by the detaining authority have not been furnished to the detenu, which prevented him from making an effective

representation against the detention order. It is also pleaded that detenu's constitutional right guaranteed under Article 22(5) of the Constitution of

India as also Section 13 of the Act of 1978 has been breached by the respondents; detenu has not been informed that he can make an effective

representation against an order of detention; detenue, being illiterate, could not understand the grounds which are in English language as the

detenue understands only Kashmiri and Urdu language. Petitioner has obtained photo copy of order of detention unofficially from the office of the

Respondent No. 2 and that the detention order was passed without application of mind.

In the counter affidavit, it is pleaded that in view of the activities of the detenue and in order to ensure that public order is maintained, it had

become necessary to detain the detenue. It is also pleaded that while passing the detention order provisions of Act of 1978 have been complied

with.

The averments made in the petition as referred to hereinabove have remained uncontroverted in the counter affidavit. The plea of the petitioner

that material on the basis of which detention order has been passed has not been supplied to him has remained uncontroverted. Detenu claims that

he has been prevented from making an effective representation against detention order appears to be thus well founded on the pleadings of the

parties. The detenu's right to make an effective representation as guaranteed by Article 22(5) of the Constitution of India is infringed. In detention

order detaining authority has stated that detenue is ordered to be detained for a period of one year and has been ordered to be lodged at District

Jail Udhampur and in the counter affidavit it is stated that detenue has been ordered to be detained for a period of 24 months. The detaining

authority under the provisions of Act of 1978 has no authority to fix the period of detention. The detention order itself mentions grounds on which

the detaining authority has entertained satisfaction to order for detention of detenu. The grounds mentioned in the order are vague and thus

prejudiced the detenu from making an effective representation.

For the above stated reasons, this petition deserves to be allowed.

Order No. DM/GBL/PSA/01 /2010 dated 09.02.2010 passed by respondent No. 2 is quashed and respondents are directed to release the

detenu namely Abdul Rashid Bhat S/o Abdul Ahad Bhat R/o Wangath Kangan, District Ganderbal from the custody in case he is not required in

any other case. Registry to serve copy of this order on respondents forthwith.