Quresh Ahmad vs State of Jammu & Kashmir and Others

Hasnain Massodi, J.—Heard. Considered.

Challenge to order No. 02 of 2010 dated 21.12.2010, whereby District Magistrate, Rajouri -respondent No. 2 herein has placed one Shri Quresh

Ahmad son of Late Abdullah resident of Village Panghai Tehsil Thannamandi District Rajouri (herein after referred to as ""detenue"") under

preventive detention, must succeed for the reason that the detention order in question as admitted in Para 05 of counter affidavit filed on behalf of

respondent No. 2, is yet to find approval of State Government. It is pertinent to point out that the detention order made u/s 8(2), J&K Public

Safety Act 1978, is to remain in force in terms of Section 8(4) of the Act for a period of 12 days unless in the meantime it is approved by the

Government. Even after the detention order is approved by the Government, it is to be placed before the Advisory Board within four weeks from

the date it is made and the Advisory Board may confirm the detention order or may recommend its revocation. In the present case the detention

order though made on 21.12.2010 did not find approval of the State Government till 4th June 2011 nor was confirmed by the Advisory Board.

It is pertinent to point out that as per grounds of detention the involvement of detenue in various FIRs detailed therein has weighed heavily with

the detaining authority while slapping detention on the detenue. It was thus necessary for the respondents to provide the detenue copies of FIRs

and connected material so as to

enable the detenue to make an effective and meaningful exercise of aforementioned Constitutional and Statutory safeguards. Failure on the part of

detaining authority to discharge their Constitutional and Statutory obligation has again rendered the detention order unsustainable.

This apart, the detenue has, as per record available, neither been communicated within 10 days from the date of detention, the grounds of

detention nor provided an opportunity to make a representation against detention order. The detaining authority also has not informed the detenue

that he independent of his right to file a representation against his detention is entitled to make a representation to the detaining authority prior to its

approval by the Government. The detention order in question thus does not satisfy requirements of various provisions of J&K Public Safety Act

1978 and also is violative of Constitutional safeguards guaranteed under Article 22(5), Constitution of India.

In the said background, the petition is allowed and detention order No. 02 of 2010 dated 21.12.2010, quashed. Resultantly the respondents

are directed to release the detenue forthwith from preventive detention, ordered under order No. 02 of 2010 dated 21.12.2010.

Disposed of along with CMP(s).