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WP (Crl) No. 307/2021

HIGH COURT OF JAMMU &KASHMIR AND LADAKH

AT SRINAGAR

WP(Crl) No. 307/2021

Reserved On: 19. 05.2022

Pronounced on: 23.05.2022

Anjum Bashir Mir

…..Petitioner(s)

Through: Mr.Syed Musaib, Advocate.

V/s

UT of J&K & Ors.

….. Respondent(s)

Through: Mr. Sajad Ashraf, GA

CORAM: HON’BLE MR. JUSTICE, M.A.CHOWDHARY,JUDGE

JUDGMENT

1.

District Magistrate, Srinagar (hereinafter called „Detaining Authority‟) in

exercise of powers under Section 8 of the Jammu & Kashmir Public

Safety Act, 1978, passed the detention Order No. DMS/PSA/95/2021

dated 07.12.2021 (for short ‘impugned order’), in terms whereof the

petitioner namely Anjum Bashir Mir S/O Bashir Ahmad R/O Bagh-e-

Usman Colony Lane No. 02 Gulab Bagh, Srinagar (for short „detenue‟)

was ordered to be detained and lodged in District Jail, Baramulla.

2.

It is stated in petition on hand that the detenu has been arrested in cases

FIR No. 28/2021 U/Ss 307-IPC 7/27 I.A. Act 13 UA(P) Act registered at

Police Station Zakura and FIR No. 43/2017 U/Ss 147/148/149/336/237

RPC registered at P/S Soura and despite being implicated in substantive

offences, detenu has been booked under preventive detention in terms of

impugned detention order.

3.

The impugned order of detention has been challenged on following

various grounds which are taken in alternative without prejudice to each

other:

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WP (Crl) No. 307/2021

i/ That the allegations/grounds of detention are vague and mere

assertions of the detaining authority and no prudent man can make

an effective representation against these allegations and can only be

defended in a court of law. Further the cases mentioned in the

grounds of detention have no nexus with the detenue and has been

fabricated by the police in order to justify its illegal action of

detaining the detenue;

ii/ the detaining authority has not prepared the grounds of detention

by itself, which is a pre-requisite for him before passing any

detention order. Thus non-preparation of grounds of detention order

by the detaining authority has rendered the detention order bad in

law and deserves to be quashed;

iii/ the detenu has not been furnished the material relied upon by

the detaining authority while passing impugned detention order such

as copy of FIRs, arrest memo, seizure/recovery memo and the

statements recorded under section 161 Cr.P.C, which has deprived

the detenue to make a meaningful representation against his

detention and it is also contended that the grounds of detention were

never explained to the detenue in the language which he understood.

The detenue was not in a position to understand the contents of the

order and grounds of detention which also prevented him from filing

a representation against his detention. The impugned order of

detention is, therefore, liable to be set aside.

iv/ The detenue was not informed to make a representation against

his detention order before the detaining authority or to the Govt., no

period was specified which is in total violation of the rights of the

detenue as guaranteed under article 22 (5) of the Constitution of

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WP (Crl) No. 307/2021

India and Section 13 of the J&K Public Safety Act. On this ground

also the detention order is bad in law.

4. The respondents, in their counter affidavit, have disputed the averments

made in the petition and stated that they have followed the provisions of

J&K Public Safety Act. It is contended that the detenue has been found

indulging in unlawful activities which are prejudicial to the maintenance

of Security of UT of J&K and the detenue is involved in case FIR No.

28/2021 U/Ss 307-IPC 7/27 I.A.Act 13UA(P) Act and FIR No. 43/20217

U/Ss 147,148,149,33