ORDER
A.B. Qadir Parray, J.
1. This petition was heard the judgment reserved on 12-9-1995, subjects to production of records within one week by the respondent/State. By now more than ten days have passed, but neither records have been made available nor is there any response for the same.
2. By this petition moved under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir State, the petitioner has asked for the issuance of writ of certiorari for quashing the detention order passed by respondent No. 2 i.e. District Magistrate, Shrinagar, vide order No. DMS/PSA/Misc/19/95 dated 19-4-1995 under the Jammu and Kashmir Public Safety Act and writ of mandamus, directing the respondents to set at liberty the detenue forthwith wherever he is lodged at the time of passing of order of release.
3. The petitioner was constrained to file this petition and challenge the detention of the detenue as because when the detenue was detained under the aforesaid detention order, of which grounds of detention seem to have been served on the detenue, the grounds do make a mention that in the month of June, 1993, the person of the detenu was detained under Public Safety Act and lodged at District Jail, Kathua and other corelated facts.
4. Challenge has been put to the detention by making reference to this ground No. 4, alleging that at the relevant time, the detenue was no more in detention and was already released under the directions of the Court and was practising as lawyer in Jammu wing of the Court and other subordinate Courts and TADA Court at Jammu. This is one of the grounds taken by the petitioner to demonstrate that there has been non-application of mind on the part of detaining authority while passing the detention order.
5. The second ground of attack is that the grounds of detention are only the replica of the police dossier by effecting change from the word ‘he’ to the word ‘you’. For example in ground No. (2) of grounds of detention, it has been mentioned:-
“After your defeat in the election, you propagated the ideology of establishment of Islamic State and for the merger of Jammu and Kashmir with Pakistan for which, he motivated, instigated innocent youth to take up arms by obtaining subversive training in Pakistan/POK in the year 1989.”
Thus word ‘he’ has been substituted for word ‘you’ in the grounds of detention, which also shows non-application of mind by the detaining authority.
6. It has also been averred that the averments which have been made basis of grounds of detention are pertaining to the alleged activities of the detenue in Jammu province/Kupwara and Baramulla Districts, while as District Magistrate, Srinagar, who has drafted the grounds of detention and passed the order of detention is in no way supposed to know the activities of the detenue alleged to have been committed by him in Jammu Region or districts of Kupwara and Baramulla. Had the order been passed by Divisional Commissioner, Kashmir or Jammu, there could have been propriety to them, and things could have been appreciated in that perspective, but it has not been done.
7. Further-more it is submitted that the supporting material and the documents, of which reference and reliance has been made by the detaining authority in the grounds of detention i.e. ‘you were detained in the month of June 1993’ have not been delivered to the detenu so as to enable him to make. representation as envisaged under Sub-Article (5) of Article 22 of the Constitution of India and the relevant provisions of the Statute.
8. On the above grounds and other grounds urged in the petition, the petition was admitted to hearing way back on 12-6-1995, and the respondent/ State was served. They appeared, but did not choose to file any counter affidavit. On 11-7-1995, Mr. A. M. Bhat appearing for the respondent/State was given further four weeks time to file counter which he could not do and again the case came up for consideration on 22-8-1995 when on that date, the Court while ordering the case to be processed for hearing, option was given to the respondents that they shall be at liberty to file counter in the meantime, in case they choose so. Even this opportunity was not availed by the respondent/State and the case was listed on 5-9-1995. The case seems to have been again listed on 12-9-1995, when it was heard and perused and the judgment was reserved on the assurance extended by Mr. Majid that he will produce records for perusal of the Court within a weeks’ time, but those records have also not been made available to the Court.
9. Thus in the above circumstances, I am left with the petition supported by an affidavit and unrebutted by the other side.
10. The averments made in the petition are that the detenu is a legal practitioner, practising in this Court as well as in the subordinate Courts of the Jammu and Kashmir High Court has been deprived of his legal as well as constitutional rights by not providing him the supporting documents, on which reference and reliance has been made in the grounds of detention and that he has not been able to make any representation worth the name not to speak of any effective representation, thereby he has been deprived of his valuable right.
11. The liberty of an individual is sacrosanct and the courts feel envious in case liberty of an individual is being taken away by not following due course of law. Though Constitution has empowered the State to legislate in the circumstances to pass an enactment in order to maintain security of the State and Public order, the State did legislate on that count which came to be known as Jammu and Kashmir Public Safety Act of 1978 and as amended till date, is in force. However, the riders which have been provided under the Statute and the statutory obligations made therein are to be followed meticulously, when a person is deprived of his liberty and detained for a maximum period of two years without trial.
12. In a regular trial under penal law, the accused is having so many opportunities of defending himself. Firstly he is being provided with the copies of all the documents and other relevant records which have been collected by the police/investigating agency including statements of witnesses recorded under Section 161 Cr. P.C. and then his statement is being recorded by the court before he is charged. At that time also, he is being heard not only verbally but even by documents and subsequently he is being put to trial, the witnesses are being produced in the court, they are being put to cross examination and there-after the substance of accusation is specifically put to the accused under the provisions of Section 342 Cr. P.C. asking him to explain the circumstances which appear against him in the evidence recorded. Further more, the accused in the regular proceedings is a competent witness to appear himself in his defence under Section 342-A, Cr. P.C. Not only this, when the defence witnesses are recorded, the accused is being heard on the question of conviction or otherwise and at the time of recording of conviction, the accused is again entitled to be heard on the quantum of sentence.
13. Thus with all the above referred riders, the accused is getting full dressed enquiry in a regular trial and then he may be put behind the bars and punished.
14. In the preventive detention, a person is put behind the bars without trial for a maximum period of two years and that is why the legislature has been very much cautious and particular to see that the mandates of law laid down and the constitutional guarantees ensured to citizen are being adhered to while depriving him of his liberty and when the detaining authority fails to observe these mandates meticulously, the order of detention cannot stand judicial scrutiny. Not only that even the statute of Public Safety Act provides that when an order so passed by District Magistrate or by a Divisional Commissioner under Sub-section (2) of Section 8 of the J & K Public Safety Act, that order is only for a period of 12 days, unless same is approved by the Government under Sub-section (4) of Section 8 of the Act and the case of the detenue thereafter is being forwarded to the Statutory Advisory Board under the provisions of Section 14 and 15 of the J & K Public Safety Act within four weeks, from the date of detention.
15. The statutory Advisory Board has to hear the detenue in person or through representation, if any and then convey its opinion regarding continued detention of the detenue or otherwise and this opinion is to be communicated within a statutory period of time bound programme of fifty six days i.e. 8 weeks and the Government is within its competence to act upon the advice tendered by the Board and pass orders under Section 17 (i) of the Act, confirming the order of detention within a period of three months or the Government may at any time pass orders under Sub-section (1) of Section 19 of the Act by revoking the order of detention. All these constitutional mandates are to be observed and the confirmation order is to be issued by the Government within a period of three months as per the Statute in force in the State of Jammu and Kashmir as because till date the provisions of 44th Amendment of the Constitution of India has not been extended to the State of Jammu and Kashmir, wherein the process is to be completed within two months. There is nothing on record to show that the respondents have completed this whole process within the stipulated period to sustain the order of detention passed against the detenue.
16. As already stated, neither records have been made available nor counter has been filed and as such this court has no other option, but to conclude that the order of detention passed by the detaining authority is not in accordance with law and cannot stand judicial scrutiny.
17. For the foregoing reasons, this petition is allowed and by a writ of certiorari, the order of detention passed by respondent No. 2 under No. DMS/PSA/Misc/19/95 dated 19-4-1995 is quashed and by a writ of mandamus, I hereby direct that the detenue be released forthwith wherever he is lodged under the aforesaid detention order, unless otherwise required in any substantive offence. The petitioner is also awarded costs of Rs. 5000/- to be paid to the detenue.