Decided on July 09,1993

STATE OF JANDK Respondents


- (1.)PETITIONER Surrinder Singh has been detained under the orders of District Magistrate Jammu issued on 2.12.1992 under Section 8 of the J&K Public Safety Act (for short referred to as Ëœthe Actâ„¢) for period of 24 months, the grounds on which the petitioner has been detained are enumerated in the grounds of detention and are reproduced herein below: - "You, Constable Surrinder Singh S/o Shri Mohan Singh r/o Gura Slathian presently lodged in Police Station Pacca Danga Jammu, have been indulging in activities prejudicial to the security of the State. Being posted in the District Police Lines and frequently been deputed on escort duty for escorting the under -trial prisioners including hard -core militants from Central Jail Jammu to Saddar Court. You, by misuse of your official capacity developed contacts with such militants and their outfits in order to aid and facilatate them in their anti -national, militant and subversive activities for achieving the goal of secession of the State of J&K from the Union of India. In this process you have been clandestinely indulging in activities, prejudicial to the security of the State as is clearly evident from the following: - On 28.11.1992 you alongwith 17 other Police personals formed an escort party under the charge of S.I. Yash Paul Bakshi and were deputed from the Distt, Police Lines Jammu for escorting the under trial prisoners including hardcore militants from Central Jail Jammu to Saddar Court Jammu. The hard -core criminal turned militant namely Mehmood Hussain Kaka Hussain belonging to a militant out -fit was entrusted to your custody for his production in the court of Additional Sessions Judge Jammu in case State Vs. Mohd Rafiq and Ors. U/s 307 RPC 3/25 IAA. Being already in collusion with the said accused and his associates, you intentionally and in pursuance of well organized plan allowed the meeting of said Kaka Hussain with six of his associates in the court premises in which currency notes in the amount of Rs.10,000/ - were made over to Kaka Hussain by one of his associate, who delivered the same to his another associate for some clandestine anti -national activities. After this transaction, you carried said Hussain to a house in Mohalla Ustad Jammu in a three -wheeler, there after removing his had -cuffs from your belt you permitted him to satisfy sexual lust with his wife and thereafter escape from lawful custody to enable him to revive his clandestine and underground subservive SIC activities alongwith his associates belonging to a militant out -fit for achieving the goal of secession of the State from the Union of India. A case FIR No. 434/92/U/S224/ 225 -A RPC stands registered at Police Station Pacca Dange Jammu in connection with escape of said Kaka Hussain." The petitioner has assailed the aforesaid order of detention by stating that he was posted as a Constable in the District Police Lines at Jammu and was illegally arrested by the S.H.O. Police Station Pacca Danga Jammu on 28.11.1992 in F.I.R. No. 434/92 registered under Section 224/225 -A RPC. He moved an application for bail for his release but was informed that he had been arrested under the J&K Public Safety Act. He was not apprised of the grounds of detention which were served upon him much after the statutory period prescribed under the Act was over. The detention order was passed against him on the grounds that he had developed contacts with militant outfits and in order to aid the anti -national militant activities for the goal of secession of the State of Jammu and Kashmir, he has released the accused kaka Hussain, involved in a case triable by Additional Session Judge Jammu. Such stray act if found correct on the part of detenue cannot form a ground for detaining him for the activities which are prejudicial to the security of the State. According to the petitioner, there is not a grain of truth in what has been attributed by the detaining authority in the grounds of detention to form the subjective opinion for his detention under the provisions of the Act. The petitioner belongs to a Rajput family and is the son of an ex -serviceman. His predecessors have the distinction of having served the Nation even at the cost of their lives. His reputation has unnecessarily been damaged and he would prefer to die than being dubed as anti national or even a person aiding the assisting the anti -national. He is a National from the core of his heart and would not hesitate to do all or anything which may be required of him for the cause of Nation. He is ready to curb the menace of terrorism and anti -nationalism. The order of detention has not been passed on some material available against him and the same is not sustainable in the eye of law and it has been passed in hot haste without application of mind by the detaining authority. The detaining authority has mechanically made an observation that it was considered highly necessary to prevent the petitioner from continuing to indulge in such activities for there was likelihood that he would be released on bail. The petitioner was not supplied the police dossier, first information report and the interrogation report and the same being the photostate copies and not authenticated, could not be used by him for making representation before the Advisory Board. The petitioner has been deprived of right of consideration by the Advisory Board as the detention order and the representation of the petitioner have not been placed before the Advisory Board, within the statutory period prescribed therefor under section 15 of the J&K Public Safety Act.
(2.)AS per this court order dt.24.5.1993, Mr. Baldev Singh, GA, who appeared for the respondents, was directed to file the detailed counter -affidavit during the course of the week as the matter was of an emergent nature, therefore, the registry was directed to list this case on 3.6.1993 before any available Bench for orders. Such an order was passed on the basis of CMP No. 113593on24.5.1993, wherein the petitioner had prayed that as Honâ„¢ble Mr. Justice A.M. Mir was likely to hold his Court at Srinagar Wing of this Court, therefor, it was prayed that the case may be listed before any other available Bench. This CMP was based on the order passed by Honâ„¢ble Justice B.A. Khan dated 13.5.1993, which reads: "The matter appears to have been dealt with all along by Honâ„¢ble Mr. Justice A.M. Mir, on the anology of some other identical petition. Registry to place this matter before his lordship next week.  The perusal of the file shows that the Honâ„¢ble Justice A.M. Mir on 29.3.1993 had passed the following order: - "Nobody appears for the respondents. I am informed that I have already disposed of petition of an identical nature arising out of the same cause, so it would be just and expedient to order listing of this case next week for further orders." Mr. P.C. Sharma, GA, who later on appeared for the Respondents, did not file any Counter, but instead produced the record of the case.
(3.)HEARD Mr. J.P. Singh for the petitioner and Mr. P.C. Sharma, GA, for the respondents and also bestowed my thoughtful consideration over the record on the file.
Firstly, the argument advanced by the learned counsel for the petitioner Mr. Singh is that as no counter has been filed by the Respondents, therefore, there is no reason for the court to disbelieve the aversions made by the petitioner in his petition, which are supported by an affidavit, showing that the petitioner has been detained arbitrarily without any material available with the detaining authority, envisaging that he had ever been harbouring with the militants and he acted in a manner prejudicial to the security of the State.

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