Mushtaq Ahmad Ganai vs State

Mushtaq Ahmad Ganai is detained under order DMS/PSA/62 dated 06081999 of District Magistrate. Srinagar under section 8 of the Jammu

and Kashmir Public Safety Act. 1978. with a view to prevent him from acting in any manner prejudicial to the security under the warrant on

03111999. This order is under challenge in this petition.

It is alleged that the detenue has not been informed of his right to make a representation against the detention. He has not been explained the

grounds of detention. He has not been supplied copy of the detention order and is not aware about the basis of detention. It is further pleaded that

the material and documents, the basis of the grounds have not been supplied to detenue. He is legally incapacitated from making a meaningful

representation.

In reply petitioner's detention by District Magistrate under his orders as above, is not refuted. He is stated to be taken in detention on

03111999. It is stated that the grounds as also the order were served on the detenue. who was explained its contents in the language which he

understood. He was also informed of his right to make a representation. The record/material was supplied to the detenue.

The counsel representing the detaining authority/respondents, submits that the petitioner was taken in preventive custody in compliance with the

detention order and that the procedural and other requirements as required under provisions of the Jammu and Kashmir Public Safety Act have

been complied with and the detention of the detenue is in order.

Petitioner's counsel contends that the detenue has not been supplied the material and the documents unfolding the essential facts of the grounds,

the basis of the detention, thereby violating the constitutional imperative as laid under Article 22 (5) of Constitution of India qua communication of

the grounds of detention to the detenue and affording him an earliest opportunity of making representation against the detention order.

In para 4 of the counter affidavit, it is stated:

That the record/material in the form of grounds of detention stand supplied to the detenue. thereby enabling him to make a representation to the

government against his detention which the detenue failed. No other material including FIR has been relied for detention of the detenue under

PSA.

This para has to be read with the grounds of detention. The first two paras of the grounds, introductory as they are. relate to the residence,

affiliation to the militant outfit and date of birth and education qualification of the detenue. Para 3 and 4 in all about 8 lines, read as under

You were locally imparted weaponery training in handling sophisticated weapons like AK rifle by your outfit and were provided arms/amm. for

spreading terror and panic in the area. You being close associate of Shabe R/0 Khan Khas Sokhata, dead, of JKLF Org. Imtiyaz Ahmad Code

Sahib, and Khurshid Ahamd, dead, of Org. JKLF played a vital role for the welfare of your banned organisation. You also remained active in the

subversive activities till your arrest.

The next two paras deal with FIR 72/99 under section 7/25 I.A. Act. registered at Police Station Safakadal Srinagar and arrest of detenue and

recovery of arms at his instance. The last two paragraphs again just 4 1/2 lines speak of petitioner's joining his outlawed organisation and his

activities being highly prejudicial to the security of the State.

The grounds disjoined as they are. make little sense in absence of details with reference to day and date. time. name, particulars etc., and that

too when FIR Part is excluded therefrom as the same in terms of the counter is stated to be not relied for detention. There is nothing to show that

even otherwise omnibus truncated grounds based as they should be on some police report, dossier etc., were communicated to the detenue. The

detenue cannot be said to have been supplied any material/documents unfolding the essential and core facts of the grounds, the basis of the

detention. Obviously, contention that the detenue was legally disabled to make a representation is sustainable on record.

In Sophia Ghulam Mohd Bham Vs. State of Maharashtra and others (AIR 1999 SC: 3051), in the context of preventive detention, it is pointed

out:

... The right to be communicated the grounds of detention flows from Article 22 (5) while the right to be supplied all the material on which the

grounds are based flows from the right given to the detenue to make a representation can be made and the order of detention can be assailed only

when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also

disclosed and copies thereof are supplied to the person detained in his own language......

In absence of supply of above basic facts and material, having a bearing in influencing detaining authority's subjective satisfaction and

conclusions, (not communicated) to the detenue. the detenue cannot be said to have been afforded an opportunity to make representation to the

Government. In the over all facts and circumstances of this case the right to make effective and meaningful representation seems to have been

denied to the detenue and obviously the respondents have breached constitutional obligation of the State of providing meaningful and effective

opportunity to detenue of representation to the Government against the detention.

No other point is raised or canvassed to question the detention.

For the aforesaid reasons, the detention is found, as above, legally bad and quashed. Respondents/detaining authority/officer having physical

corpus of the detenue is directed to release him from custody and set him at liberty forthwith, provided not required in any substantive offence of

case, communicate order to concerned. Give copy of order to detenue free of cost.