HCP No. 39 of 2015. Case: Javaid Ahmad Najar Vs State and Ors.. Jammu and Kashmir High Court

Case Number:HCP No. 39 of 2015
Party Name:Javaid Ahmad Najar Vs State and Ors.
Counsel:For Appellant: M. A. Qayoom, Adv. and For Respondents: G. M. Reshi, Dy. AG.
Judges:Mohammad Yaqoob Mir, J.
Issue:Jammu and Kashmir Public Safety Act (6 of 1978) - Section 8; Constitution of India - Article 22(5)
Citation:2016 CriLJ 329
Judgement Date:September 24, 2015
Court:Jammu and Kashmir High Court
 
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Judgment:

  1. Pursuant to order No.DMB/PSA/05 dated 09.06.2015, passed by District Magistrate, Budgam, Javaid Ahmad Najar has been detained under Public Safety Act and lodged in District Jail, Kupwara.

  2. According to the learned counsel for the petitioner, the detenu had been in custody in connection with case FIR No.92/2015 of P/S Budgam for the commission of offence punishable under Sections 121, 124-A, 147, 341, 336, 427, 120-B, RPC and 13ULA(P) Act, and while in custody has been ordered to be detained under Public Safety Act. No compelling reason has been recorded for passing the impugned order which was a requirement as the detenu was already in custody. Further, the material forming base for the detention has not been supplied to the detenu disabling him from making an effective and purposeful representation against his detention.

  3. It is settled that a person in custody in connection with criminal cases can be detained under the provisions of preventive laws provided there are compelling circumstances for so doing otherwise the order of detention shall be bad. In this connection, it is quite apt to quote following para from the judgment T. P. Moideen Koya v. Government of Kerala and Ors., reported in 2004 (8) SCC 106: (AIR 2004 SC 4733)

    ........in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenu was likely to be released on bail

  4. It is not forthcoming from records as made available that the material forming base for the order of detention has been furnished to the detenu when the detenu admittedly was arrested in connection with aforesaid case. The statements recorded under Section 161, Cr. P.C in connection therewith were also required to be furnished to the detenu. The non supply of the material has disabled the detenu from making an effective representation so as to show his innocence. Non supply of material forming base for detention is violative of the right guaranteed under Article 22(5) of the Constitution.

  5. It shall be quite advantageous to quote following para from the judgment rendered in case captioned Powanammal v. State of T. N. and another, reported in 1999 (2) SCC 413: (AIR 1999 SC 618)

    "The amplitude of the safeguard embodied in...

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