Gh. Hassan Rather vs State and Others

Abdul Quadir Parray, J.—Mr. Bazaz, counsel for the respondents was called upon way back on 29-7-1994 by this Court to show as to

whether the order passed by the District Magistrate detaining the person of the detenue Ghulan Hassan Rather S/o Ali Mohammad Rather R/o

Khoshipora, was duly approved by the Government as is required under Sub-section (4) of Section 8 of the J & K Public Safety Act. He was,

granted two weeks time to apprise the Court about the same. But till date respondent/State has miserably failed to apprise the Court about this

situation.

It may not be out of place to mention here and to place on record that u/s 8 of the J & K Public Safety Act, the Government or the functionaries

namely the District Magistrate/Divisional Commissioner can pass orders for detention of a person under the said Act. The Act has been enacted in

pursuance of sub-Article (4) of Article 22 of the Constitution of India as applicable to the State of Jammu and Kashmir. The orders to be passed

by a District Magistrate or the Divisional Commissioner except the Government are to be approved by the Government under Sub-section (4) of

Section 8 of the J & K Public Safety Act and no order passed by the District Magistrate or the Divisional Commissioner can be in force for more

than twelve days. So it is a mandatory provisions that the detention order passed by the District Magistrate or the Divisional Commissioner is to be

approved by the Government within twelve days as envisaged under Sub-section (4) of Section 8 of the Act.

In the present case when it is a positive averment made by the petitioner that the order passed by the District Magistrate has not at all been

approved by the Government and the Government was called upon to justify and to show to the Court whether the order was duly approved. The

way in which Government has failed to apprise the Court about this fact is self speaking and that means the order whether passed by District

Magistrate or the Divisional Commissioner and not approved by the Government under Sub-section (4) of Section 8 of the Act has lost its validity

just after 12 days and the detention of the detenue beyond 12 days is not only unconstitutional and illegal but also improper.

It Is further submitted by Mr. Bazaz that the order passed on 7-1-1994 was for a period of twelve months and otherwise also as per

submissions, the order of detention has lost its life. Be that as it is and legally speaking that in case the order has not been approved by the

Government as envisaged by Sub-section (4) of Section 8 of the J & K Public Safety Act. the detention under the said order is not only

unconstitutional but also illegal.

For the foregoing reasons, the petition is allowed and the order of detention bearing No: PSA/ DMS/ 645/93 dated 7-1-1994 is quashed and

the respondents are directed to release the detenue forthwith from preventive custody under the aforesaid order, unless otherwise required in any

substantive offence. The petition is disposed of accordingly.