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Abdul Gani Bhat Vs. State of Jammu and Kashmir and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1985CriLJ481
AppellantAbdul Gani Bhat
RespondentState of Jammu and Kashmir and anr.
Excerpt:
- .....district magistrate, pulwama purported to have been issued under the provisions of the jammu and kashmir public safety act, 1978. in para no. 2 of the petition, the petitioner stated that the detenu was apprehended by police pampore on may 21, 1984, and the petitioner's brother was detained in the police station, kothi bagh, srinagar, for may 21, 1984 to june 5, 1984, without any order of detention being served on him. thereafter, he was shifted to police station, pampore, where he was kept till june 11, 1984. it was on that day only that the detenu was served with the grounds of the detention annexed as annexure 'a' with the present petition under the said act at sub-jail, hiranagar. it is pointed out by the learned counsel for the petitioner that during the pendency of this petition,.....
Judgment:
ORDER

Mazhar Ali Shah, J.

1. This is a Habeas Corpus Petition filed by the petitioner, namely, Abdul Gani Bhat brother of the detenu Under Section 103 of the Constitution of Jammu and Kashmir against the order of detention by which the brother of the petitioner, namely, Ghulam Nabi Bhat alias Nabba Driver has been detained by order of respondent No. 2, District Magistrate, Pulwama purported to have been issued under the provisions of the Jammu and Kashmir Public Safety Act, 1978. In para No. 2 of the petition, the petitioner stated that the detenu was apprehended by police Pampore on May 21, 1984, and the petitioner's brother was detained in the Police Station, Kothi Bagh, Srinagar, for May 21, 1984 to June 5, 1984, without any order of detention being served on him. Thereafter, he was shifted to Police Station, Pampore, where he was kept till June 11, 1984. It was on that day only that the detenu was served with the grounds of the detention annexed as Annexure 'A' with the present petition under the said Act at Sub-Jail, Hiranagar. It is pointed out by the learned Counsel for the petitioner that during the pendency of this petition, the detenu is now transferred to Central Jail Srinagar. It is also submitted by the learned Counsel for the petitioner that except the grounds, no order of detention passed by the District Magistrate Under Section 8 or Section 13 of the above said Act is served on the detenu.

2. After service of the notice to the State and the District Magistrate, learned Chief Government Advocate appearing on behalf of the respondents was granted time to file the counter, but no counter is filed till now. He wanted further time to file the counter, but looking to the nature of the grievance made in the present petition and it being a Habeas Corpus Petition, no further time is granted to file the counter.

3. Heard counsel for the parties.

4. On going through the contents of the petition and the grounds supplied to the Detenu marked as Annexure 'A', I am of the opinion that the present order of detention suffers from many infirmities. Apart from the fact that the order of detention is not served on the Detenu, it does not appear even from the grounds that any material was supplied to the detenu on the basis of which the detention order is passed. There is further grievance of the petitioner that the grounds of detention were communicated to the Detenu after 35 days, which is in utter disregard of the provisions of Section 13 Sub-section (1) of the Jammu and Kashmir Public Safety Act, 1978. All these allegations stand uncontroverted by the respondents. By reading paragraph 5 of the grounds, it also appears that the District Magistrate passed the detention order mechanically without application of mind, as will be apparent from the following last para of the grounds, which is reproduced as follows :-

Thus in view of the foregoing paras the above mentioned individual, namely, Shri Gh. Nabi Bhat alias Nabba Driver s/o Shri Ab. Khaliq Bhat r/o Namblabal Pampore is a dangerous activist and his being at large is prejudicial to the Public disorder, his detention is highly warranted.

Sd/-District Magistrate.

Pulwama.

5. Liberty of a citizen is a valuable right and when the District Magistrate is empowered under the provisions of the Jammu and Kashmir Public Safety Act, 1978 to detain any citizen on his subjective satisfaction, it is his imperative duty to pass the order of detention conscientiously and it must be apparent from the order that he has applied his mind fully before detaining a citizen and also to supply material to the detenu on the basis of which he has formed his subjective satisfaction unless he claims privilege in public interest. I find no hesitation in holding that the District Magistrate, Pulwama failed to comply with the letter and spirit of the law and thereby the detention of the petitioner's brother, namely, Ghulam Nabi Bhat is violative of Article 22(5) of the Constitution.

6. On the grounds mentioned above, the petition is, therefore, allowed. The order passed by the District Magistrate, Pulwama, and the respondent No. 1, State of Jammu and Kashmir, detaining the brother of the petitioner namely, Ghulam Nabi Bhat alias Nabba Driver s/o Shri Abdul Khaliq Bhat r/o Nambalbal Pampore, District Pulwama under the provisions of the J & K Public Safety Act is hereby quashed and it is directed that the detenu be released forthwith and be set at liberty.


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