Abdul Rashid Naik vs State of Jammu & Kashmir and Others

J.P. Singh, J.—Heard learned counsel for the parties and perused the Detention Records made available by learned Additional Advocate

General.

Abdul Rashid Naik was ordered to be detained by District Magistrate, Ramban in terms of his Order No. DMR/PSA/OF 2011/29 dated

January 17, 2011 issued u/s 8 of the Jammu and Kashmir Public Safety Act, 1978 when he was already in Police Custody in FIR No. 51/2010

registered at Police Station, Gool under Sections 307/121-A/120-B RPC and 7/27 Arms Act.

It is settled proposition of law that a person who was already in custody, may be detained in preventive custody as well; but before doing that,

the Detaining Authority is to be satisfied that the detenu may be released from custody and when so released, may indulge in activities for which his

detention in preventive custody was permissible under laws in force governing detention in preventive custody, of course on material with the

Detaining Authority justifying such satisfaction.

Perusal of the Detention Records indicates that there was absolutely no material with the District Magistrate and nor has he so indicated in the

Grounds of Detention that the detenu was likely to be released from custody and when so released would indulge in activities prejudicial to security

of State.

Therefore, there being no material on records indicating that the petitioner may be released from custody and when so released would indulge in

activities prejudicial to security of State, the exercise of power by the learned District Magistrate u/s 8 of the Jammu and Kashmir Public Safety

Act, 1978, cannot be sustained in the absence of any compelling reasons justifying his detention in preventive custody.

The petitioner's learned counsel's submission that there was no likelihood of petitioner's release from custody as the punishment provided for the

offences for which he stood charged was death or imprisonment for life and in the circumstances, there being no compelling necessity for detaining

the petitioner in preventive custody, the Detention Order was liable to be set aside being a result of Detaining Authority's non-application of mind,

therefore, succeeds.

For all what has been said above, this Petition is, therefore, allowed quashing District Magistrate, Ramban's order No. DMR/PSA/OF 2011/29

dated January 17, 2011.

A direction shall issue to the respondents to release the petitioner forthwith from Preventive Custody.

Detention Records be returned to learned State Counsel.