ISHFAQ AHMAD RATHER Vs. STATE OF J&K
HIGH COURT OF JAMMU AND KASHMIR
Ishfaq Ahmad Rather
STATE OF JANDK
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(1.) DETENU Ishfaq Ahmad Rather was arrested by the police station Rainawari on 13 -7 -1998 as arms and ammunition were recovered from his
possession. Case as FIR No. 76 of 1998 under section 7/25 Indian Arms Act
was thereon registered against him.
(2.) WHILE he was in custody, the District Magistrate, Srinagar directed vide the impugned order No. DMS/PSA/95 dated 11 -9 -1998 his
preventive detention for a period of ten months. The impugned order
states that preventive detention is necessitated to prevent the detenu
from acting in any manner prejudicial to the security of the State. The
grounds of detention recite that being a local trained militant of banned
organization, Hizbul Mujahideen, the detenu got motivated to join the
militancy and acquired training in handling of arms and ammunition. He
was there -after provided a gun and designated as a Platoon Commander. The
grounds of detention go to show that the detenu took part in June, 1996
in an action on BSF picket at Braripora, but got arrested so as to
prevent him from committing any illegal militant activity. He was
released, but he rejoined the militant out fit, where -after he was again
arrested on 13 -7 -1998.
(3.) THE order of detention is challenged on the grounds;
i) that the procedural safeguards prescribed under the J&K Public Safety Act and the constitutional guarantees enshrined in Article 21 and 22 of the Constitution of India have not been complied with/followed by the respondents, which in turn has vitiated the order, ii) that the grounds of detention were not served on the detenu nor was he provided with the copies of the material on which the grounds of detention were based, resulting in deprivation of making an effective representation, under the statute, against the detention order; iii) that having been arrested for substantive offence in FIR No.76 of 1998, the detaining authority betrayed his non -application of mind as it has not been set out in the grounds as to what were the reasons or the circumstances where -on preventive detention was clamped on the detenu when he was already in custody and had not applied for bails.
The respondents plead, through the counter, that the order of detention was passed on 11 -9 -1998 and it was approved within the
prescribed time by the Government on 15 -9 -1998, where -after the order was
executed on 18 -9 -1998. It is further pleaded that the grounds of
detention were served on the detenu on 18 -9 -1998, where -after the case
was referred to the Advisory Board, constituted under the Statute, on
22 -9 -1998 and the Board opined in favour of detention within the prescribed period of time; that is on 12 -10 -1998, The procedural
safeguards and the constitutional requirements are said to have been
complied with as the order and the grounds of detention were communicated
to the detenu with the intimation and information to him that he could
make an effective representation, if so desired, against the order;
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