Abdul Noorani vs State of Jammu & Kashmir and Others

Hasnain Massodi, J.—Heard. Considered.

Challenge to order No. PSA/2010/27 dated 07.01.2010, (herein after ""detention order"") whereby District Magistrate, Udhampur - respondent

No. 2 herein, has placed one Shri Abdul Noorani son of Mohd Hussain Bakerwal resident of Palie Basantgarh, Tehsil Ramnagar, District

Udhampur (herein after referred to as ""detenue"") under preventive detention, is bound to succeed for the reason that the detaining authority has

directed preventive detention of the detenue for a period of two years. The detaining authority having regard to his status in the administrative set

up is expected to know that the detaining authority lacks power and jurisdiction to determine the period of detention of the detenue. Such a power

in terms of Section 8(4), J&K Public Safety Act 1978, belongs to the Government. The detaining authority by deciding on period of detention has

violated Constitutional safeguards available to the detenue under Article 22(5), Constitution of India. It needs no emphasis that once detenue is

made aware that his period of detention is decided at the outset and he is directed to be detained for the maximum term of detention provided u/s

18 of Act, the detenue would feel dissuaded from representing against his detention.

This apart, perusal of detention order reveals that the material relied upon by the detaining authority while passing detention order has not been

supplied to the detenue. Perusal of the grounds of detention reveal that detenue's alleged involvement in case-FIR No. 14/96 u/s 307/124-A RPC,

3/25 Arms Act; FIR No. 16/96 u/s 392 RPC, 3/25 Arms Act; FIR No. 4/97 u/s 307/124-A RC, 3/25 Arms Act; FIR No. 6/97 u/s 307/124-A

RPC, 3/25 Arms Act and a number of other criminal cases detailed in the grounds of detention heavily weighed with detaining authority while

recording subjective satisfaction that the detenue was to be placed under preventive detention. The copies of FIRs or statements of witnesses u/s

161 Cr.P.C. have not been, as is evident from the detention record, made available to the detenue, so as to enable detenue to convince the

detaining authority and the Government that his prevention detention was unwarranted.

Furthermore, the detaining authority has not informed the detenue that independent of his right to represent against the detention to the

Government, he also has a right to file representation before the detaining authority. The detention order in question thus violates Constitutional and

Statutory rights available to the petitioner under Article 22(5), Constitution of India and Section 13 J&K Public Safety Act.

Viewed thus the petition is allowed and detention order No. PSA/2010/27 dated 07.01.2010, quashed. The respondents are directed to

release the detenue forthwith from the preventive detention, ordered under order No. PSA/2010/27 dated 07.01.2010.

Detention record be returned to counsel for respondents. Disposed of.