GULZAR AHMAD LONE Vs. STATE

JUDGEMENT

(1.) ALLEGATION of providing logistic support to the militants appears the cause for detention of the subject under the provisions of the Jammu and Kashmir Public Safety Act 1978 (PSA). Contention of the learned counsel for the petitioner is that there is absolutely no involvement of the detenu in any such activity, therefore, grounds of detention are silent about that. He has further gone to say that the detenu has been detained under the PSA during his jail custody. To substantiate the contention it is submitted that the subject was booked vide FIR 26/08 u/s 7/25 IAA wherein he has not sought any bail which is true even as on date and this factual averment, although specifically pleaded, has not been controverted. Thus it emerges that no motion for bail was ever moved by the subject. Apart from the fact that the allegations of crime narrated in the grounds of detention being so grave that it makes an uphill task for the subject to succeed in getting the bail, even if motion is laid at any stage, yet it is to be seen as to whether grounds of detention can sustain in absence of a motion having been laid for grant of bail. To have the answer, Para 19 of the judgment of the apex Court in Charmendra Suganchand Chelawat and another Vs. Union of India and others (AIR 1990 SC 1196) may be extracted:

(2.) RELYING upon the judgment supra, the Division Bench of this Court in Mohammad Yousuf Sofi Vs. State and another (SLJ 2003(1) page 218) has held. Paras 13 and 14 may be noticed:

(3.) THE legal position that emerges from judgments supra is that the detaining authority is not powerless to pass an order of detention notwithstanding that such person is already in the custody but what is it required to do is to show from the grounds of detention that it was aware of the fact that the detenue is already in custody and has to spell out the compelling reasons which justify the order of detention. Indicating the compelling reasons, the apex Court has emphasized on the availability of cogent material to the effect that the detenue is likely to be release from the custody in near future and after his release there is likelihood of his indulging in prejudicial activities and it is necessary to detain him so as to prevent him from engaging in such activities but situations so countenanced in law are neither indicated in the grounds of detention nor by the record of the detaining authority. Thus applying the ratio of the judgments aforementioned, the order of detention is not sustainable.