BASHIR AHMAD SHEIKH Vs. STATE AND ORS.

JUDGEMENT

(1.) One Mr. Bashir Ahmad Sheikh, has been detained by dint of order of detention bearing No. 60/DMB/PSA/2017 dated 05th of July, 2017, passed by the respondent No.2 - District Magistrate, Baramulla, in exercise of powers vested in him under clause (a) of section (8) of the Jammu and Kashmir Public Safety Act, 1978 (for short Act of 1978), and lodged in District Jail, Kathua. The grounds of detention, along with the allied documents, are said to have been served on the detenue.

(2.) It is pleaded in the petition that the detenue was earlier also detained and kept in preventive custody at Kotebalwal jail vide detention order No. 69/DMB/PSA/2016 dated 16-08-2016, which was challenged by the medium of HC(P) 147/2017 and the Court, on 21-11-2016, quashed the order and directed the respondents to release the person of the detenue, Bashir Ahmad Sheikh. However, while discharging the detenue from preventive detention, the authorities shifted him to police station, Tangmarg, and again implicated him in case F.I.R NOs. 58/2016 and 47/2016. The detenue applied for bail before the competent Court of jurisdiction, which was granted to him but even after serving the bail order to the concerned police station, the detenue was not released and instead he was shifted to Joint Interrogation, Baramulla, wherefrom he was again ordered to be lodged in Central Jail Kotebalwal, Jammu, and kept under preventive custody in terms of order No. DMB/PSA/203/2016 dated 22-2-2016. It is further pleaded in the petition that the said order was assailed by medium of HC(P) No. 05/2017, and the order was quashed by the Hon'ble Court vide its order dated 26-05-2017 with the direction to the respondents to release the person of the detenue forthwith. After the service of the order of the Hon'ble Court upon the authorities concerned, the detenue was, yet again, kept behind the bars. His fate continues to be the same at the moment and he is detained under preventive custody in terms of the order under challenge in the petition at hand.

(3.) The order of detention bearing No. 60/DMB/PSA/2017 dated 05th of July, 2017, has been challenged on various grounds. The main plank of the pleadings and the argument of the learned counsel for the petitioner is that the respondent No.2, while informing the detenue of his detention under the provisions of the Act of 1978, also informed him that he can make a representation to the Government against the said detention order, if he so desires. The respondent No.2 has not, however, informed the detenue that he can make a representation to the Detaining Authority and this infraction renders the order of detention liable to be set aside. The respondents have pleaded in their Counter affidavit that the grounds of detention were read over, explained and served to the detenue and he was told that he has a right to make a representation to the Government against the order of his detention, which, it appears, has not been filed by him. The arguments have also been advanced on similar lines.