Fayaz Ahmad Dar vs State and Others

Mansoor Ahmad Mir, J.—Petitioner seeks quashment of impugned Order No. DIVCOM-""K""/09/2012 dated 10-05-2012 passed by the

Divisional Commissioner, Kashmir, respondent No. 2 herein, by virtue of which detenue came to be detained for a period of one year in terms of

the Jammu and Kashmir Public Safety Act, 1978 (for short as Act). Respondents have filed reply and resisted the petition.

Admittedly, detenue was arrested in case FIR No. 230/2011 u/s 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short

NDPS Act), registered at Police Station Baramulla. The provisions of the Act have been pressed into service despite the fact of detenue being in

custody on 10th May, 2012.

In terms of mandate of Section 37 of NDPS Act, accused cannot be enlarged on bail unless the prosecuting side is heard, provided further that

the accused has to prima-facie carve out a case that he is innocent. In such circumstances, refusing, instead of granting bail, to the accused,

converts into a rule and granting an exception.

The Detaining Authority has overturned this aspect of law and passed the detention order in breach of it and also in breach of law laid down in a

judgment passed by the Apex Court in Sayed Abdul Ala v. Union of India, 2007 AIR SCW 6974. The same issue was subject matter of HCP

No. 4/2010 and this Court after considering the material on records, quashed the detention order.

Respondents have observed all the safeguards provided by the Act read with the Constitution of India as well as Constitution of Jammu &

Kashmir in breach for the following reasons:

Before issuing the order of detention in terms of the Act, the Detaining Authority has to peruse the entire record and the material relied upon for

recording satisfaction and has to prepare the grounds of detention. Formation of grounds of detention is a pre-condition for passing the detention

order, which has not been fulfilled in this case. The Detaining Authority has passed the impugned order on the basis of dossier and not on the basis

of grounds of detention. It is apt to reproduce para 1 of the detention order:--

Whereas, the Sr. Superintendent of Police Baramulla, vide his No. CS/PSA/12/671-74 dated 28-1-2012 and subsequent letter No.

CS/PSA/12/GI/2826 dated 25-4-2012 has produced material record, such as dossier and other connected documents in respect of Fayaz

Ahmad Dar S/o Late Abdul Satar Dar R/o Ganai Hamam Tehsil and District Baramulla.

There is nothing on the file to hold that the Detaining Authority has transpired from the record as to whether any notice has been given to the

detenue for making a representation to the District or to the Government. There is absolutely nothing on the record which would warrant the Court

to prima facie make an opinion that copies of dossier or other material were supplied to the detenue in terms of mandate of the Act.

Admittedly, the detenue was in custody in FIR No. 230/2011 u/s 8/20 NDPS Act, registered at Police Station Baramulla and was not admitted

to bail. The record also does not disclose as to what were the compelling reasons to detain the detenue in terms of the provisions of the Act.

For all what has been stated hereinbefore, this habeas corpus petition merits to be allowed, and is allowed as such. The impugned order is

quashed and the detenue is directed to be released forthwith, provided he is not involved or required in any other case.

Registry is directed to handover the record to the learned counsel for respondents against proper receipt. Disposed of.