Mushtaq Ahmad Thokar vs State and Others

B.L. Bhat, Judge

Detune Mushtaq Ahmad Thokar S/O Abdul Razak Thokar R/O Shouch Kulgam, Kashmir, has sought indulgence of this court through the

medium of this writ petition filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution for quashment of

detention order No. DMB/PSA/ 2001/5 dated: 27-05-2002.

The petitioner has called in question detention of the detune on various grounds adumbrated in this petition.

On admission of this petition, respondent District Magistrate. Budgam, has filed his counter affidavit wherein inter-alia he has stated in the

preliminary objections styled as 'Factual back ground' that the detune was ordered to be detained under Public Safely Act vide order No.

DMB/PSA/5 of 2001 dated: 27-05-2002 for his past activities and inclination and in order to prevent him from activities which are prejudicial to

the security of the State. In para No. 1 of the clause headed as Factual Back ground, he has also stated that the order of detention was passed by

the Answering respondent and was approved by the Government on 26-06-2002. Thus on the own showing of the detaining authority, the

impugned order of detention came to be passed on 27-05-2002 and same came to be approved by the Government on 26-06-2002 when

mandatory requirement of sub-section (4) of Section 8 of the Public Safety Act provides that no order passed u/s 8 of the Public Safety Act shall

remain in force for more than 12 days after making the order thereof, unless in the meantime it has been approved by the Government.

As indicated above, the impugned order of detention was issued by the District Magistrate, Budgam under the provisions of the Public Safety

Act of 1978, on 27-05-2002 and same admittedly has been approved by the Government on 26-06-2002, which is admittedly after 12 days of

the issue of the order by the District Magistrate. On this count alone, the order of detention is vitiated.

The detaining authority while detaining a person/citizen under preventive detention, has to follow the procedure and constitutional safeguards

prescribed by the law strictly and any deviation thereof renders the detention bad. In the case in hand, the order of detention has been passed on

27-05-2002 and approved on 26-06-2002 i.e. after a period of thirty days from the date of its issue by the detaining authority, therefore, the

detention order is against Section 8 (4) of the J&K Public Safety Act and against Article 22 (7) (b) of the Constitution of India.

Viewed thus, the order being bad in law cannot stand the judicial scrutiny. The petition is accordingly allowed and the order of detention bearing

No. DMB/PSA/5 of 2002 dated: 27-05-2002 is quashed and the respondents are directed to release the detune from preventive detention unless

otherwise required in any other substantive offence /case.