IMPORTANT POINT
– Power of preventive detention

1. Impugned in this petition is Order No.DMB/PSA/2017/09 dated 8th March 2017, of District Magistrate, Budgam – respondent No.2 herein, whereby one Gulzar Ahmad Bhat alias Gulzar Peer son of Late Gh. Qadir Bhat resident of Shamasabad, Tehsil Khansahib, District Budgam (for brevity “detenu”) has been placed under preventive detention to prevent detenu from acting in any manner prejudicial to the maintenance of security of the State.

2. The case set up in the petition is that respondent No.2, while slapping preventive detention on detenu, has not adhered to Constitutional and Statutory safeguards available to detenu under the Constitution of India and J&K Public Safety Act, 1978. It is contended that petitioner was implicated in a false case FIR no.40/2013 P/S Khansahib as he was acquitted of the charge by a judgment dated 12.02.2015, against which appeal was directed, which too was dismissed vide judgment dated 23.02.2017. It is averred that while the Division Bench judgment was to be served on concerned jail authorities, respondents, in order to create a ground for not restoring petitioner’s liberty, resorted to getting his custody transferred from Central Jail, under the order of learned Judicial Magistrate, Budgam dated 06.03.2017. Detenu’s arrest is stated to have been made in FIR no.15/2015 P/S Khan Sahib and thereafter impugned detention order slapped on him. To cement his arguments, learned senior counsel places reliance on Powanammal v. State of T.N. and anr 1999 AIR (SC) 618; Shahmali v. State & ors 2010(1) SLJ 56; Dilawar Magray v. State of J&K & ors 2010(2) SLJ 696; and Nissar Ahmad Bhat v. State & ors; Mohd Ashraf Khan v. State & ors 2010(3) JKJ [HC] 705; Mohd Amin Beigh v. State 2012 (3) JKJ

3. Respondents, in their counter, insist that detenu was not falsely implicated in case FIR no.40/2013 under Section 376 RPC of Police Station Khansahib and that it was on the basis of a written complaint filed by four victim girls, who were subjected to sexual exploitation by detenu that the said case was registered against him; and after conducting thorough and fair investigation, it came to surface that detenue with assistance of some other accused had committed offences punishable under Section 376, 109 RPC. Insofar as acquittal of detenu, respondents maintain that acquittal of detenu was on the basis of technical grounds like delay in lodging FIR, some loopholes/flaws in investigation. Respondents aver that detenu is also involved in case FIR no.15/2015 under Section 307, 348, 336, 332, 427 RPC of Police Station Khansahib and that pursuant to order dated 6th March 2017, detenu’s custody was changed from FIR no.40/2013 to 15/2015. In order to execute an order passed by Executive Magistrate under Section 107 Cr.P.C. a police party of police station Khansahib is said to have approached detenu, but he along with his supporters, with an intention to kill, pelted stones upon police party, due to which some police personnel were injured and some damage was also caused to government vehicles and for the said incident FIR no.15/2015 was registered against him and his supporters. Detenu is said to have filed application for grant of bail under Section 497-A Cr.P.C., which was later on withdrawn by him and thereafter one more application for bail filed by him, was dismissed. However, detenu made another bid and his bail application was allowed vide order dated 17th March 2017 by learned Principal Sessions Judge, Budgam. Learned counsel for respondents in support of his submissions, has placed reliance on Debu Mahato v. State of W.B. (1974) 4 SCC 135; Anil Dely v. State of W.B. (1974) 4 SCC 514 Anil Dely v. State of W.B. (1974) 4 SCC 514; Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310; and Gautam Jain vs Union of India anr AIR 2017 SC 230.

4. I have heard learned counsel for parties. I have gone through the pleadings as also record made available by learned counsel for respondents. I have considered the matter

5. Right