HCP No. 331/2010. Case: Mukhtar Ahmad Bhat Vs State of J and K and Anr.. High Court of Jammu and Kashmir (India)
| Case Number | HCP No. 331/2010 |
| Judges | Mansoor Ahmad Mir, J. |
| Issue | Criminal Law |
| Citation | 2011 (2) JKJ 234 |
| Judgement Date | April 01, 2011 |
| Court | High Court of Jammu and Kashmir (India) |
Judgment:
Mansoor Ahmad Mir, J.
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Gh. Rasool Bhat, father of the detenue-Mukhtar Ahmad Bhat, has questioned the detention order No. Div-Com-"K"/PSA-12/2010 dated 29.09.2010 passed by Divisional Commissioner, Kashmir, whereby detenue came to be detained in terms of the provisions of Public Safety Act, for short the Act, on the grounds taken in the petition.
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Respondents have filed the counter and resisted the petition.
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It is worthwhile to mention here that as per grounds of detention the detenue is allegedly involved besides other offences, in the commission of offence under Section 15/18 of NDPS Act. The said offence is a special offence and is to be tried by a Special Judge. In terms of Section 37 of NDPS Act, no bail can be granted unless prosecution is given an opportunity to oppose the bail application and the court has to record satisfaction that there are reasonable grounds for believing that he is not guilty.
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The aforesaid provision of law puts limitations on the jurisdiction of the court in the matter of grant of bail. It contains fetters, which cannot be ignored by any court of law.
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It appears that said provision of law has not been taken into consideration by the detaining authority while passing the impugned detention order, thus, it can be safely said that it suffers from non-application of mind. My this view is fortified by the apex court judgment titled Sayed Abdul Ala v. Union of India and Ors. AIR 2007 SCW 6974. It is apt to reproduce paras 19 and 20 of the said judgment hereunder:
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The statute, thus, puts limitation on the jurisdiction of the court in the matter of grant of bail. They cannot be ignored by any Court of Law. Several decisions of this Court and of High Court operate in the field.
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Proper application of mind on the part of the detaining authority must, therefore, be borne out from the order of detention. In cases where the detenue is in custody, the detaining authority not only should be aware of the said fact but there should be some material on...
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