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2009 DIGILAW 528 (JK)

Gh. Mohd. Ganai v. State

2009-11-04

J.P.SINGH

body2009
1. Ghulam Mohd. Ganai has filed this petition through Dr. Rauf, his son seeking quashing of his detention under the Jammu and Kashmir Public Safety Act, 1978, made by District Magistrate, Srinagar vide his order bearing No. DMS/PSA/19/2009 dated 11.06.2009 and for a direction to the respondents to set him to liberty, on various grounds, inter alia, urging that the detenu was deprived of his right to make effective representation to the Government against his detention, because of the respondents omission to supply him the material, which the District Magistrate had relied upon while directing his detention. 2. Supporting the petitioners detention, in preventive custody, respondents have indicated in their Counter Affidavit that the grounds of detention were read over and explained to the detenu, who was informed of his right to make representation to the Government, as required under law and that the petitioners detention was justified in view of his activities, which were prejudicial to the security of the State. Judicial Review of District Magistrates order, by this Court, too has been questioned by the respondents. 3. I have considered the submissions of learned counsel for the parties and perused the Detention records, which were made available by the learned State counsel. 4. Perusal of order passed by the District Magistrate, impugned in this petition indicates it to have been issued on his satisfaction about the petitioners activities warranting his preventive detention, on the basis of the material records, such as Dossier and other connecting documents, stated to be have been produced before him by the Senior Superintendent of Police, Srinagar vide his letter No. Legal/Det/2487/1736/09/1680-83 dated 10.06.2009. 5. The records produced by the learned State counsel further reveal that what was supplied to the detenu, is only the grounds of detention and not the material which the District Magistrate is stated to have considered while contemplating petitioners detention. 6. It is, thus, apparent that the Police Dossier and other connecting documents, supplied by the Senior Superintendent of Police, Srinagar to the District Magistrate, Srinagar, on the basis whereof, he passed the Detention order were not supplied to the detenu along with the grounds of detention. 7. 6. It is, thus, apparent that the Police Dossier and other connecting documents, supplied by the Senior Superintendent of Police, Srinagar to the District Magistrate, Srinagar, on the basis whereof, he passed the Detention order were not supplied to the detenu along with the grounds of detention. 7. Non-supply of the material, which was relied upon by the District Magistrate, at the time of contemplating petitioners detention, deprives him of his statutory right to make representation to the Government against his detention, in that, representation contemplated by Article 22(5) of the Constitution of India and Section 13 of the Jammu & Kashmir Public Safety Act, 1978 may not be contemplated unless the detenu was supplied the material on which the Detaining Authority had applied its mind to record satisfaction that the detenu was required to be detained in preventive custody, unless however, the Detaining Authority had indicated that providing of the material relied upon, by it, to the detenu, was against the public interest. 8. The respondents omission to supply the material relied upon by the Detaining Authority, to the detenu, to make effective representation to the Government against his detention, thus renders the impugned Detention Order unsustainable, having been issued in violation of Article 22(5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act, 1978. 9. Learned State Counsels plea that the District Magistrates order was not open to Judicial Review by this Court needs to be noticed only for its rejection, in that, found to be in violation of the constitutional mandate of Article 22 (5) of the Constitution and Section 13 of the Jammu and Kashmir Public Safety Act, the impugned Detention order cannot be allowed to operate as such, necessitating exercise of the jurisdiction of Judicial Review which the Constitution of India and the Constitution of Jammu and Kashmir vests in this Court. 10. This petition, therefore, succeeds and is, accordingly, allowed, quashing District Magistrates order No. DMS/PSA/19/2009 dated 11.06.2009. A direction shall, therefore, issue to the respondents to set Ghulam Mohammad Ganai, detenu, to liberty, forthwith, if not required in any other case. 11. Detention records be returned to the State counsel.