GH MOHAMMAD GANAI Vs. STATE OF J&K

JUDGEMENT

(1.) CHALLENGE in this petition is to order No.44/DMS/PSA/2011 dated 11.06.2011, of District Magistrate, Shopian respondent No.2 herein, whereby one Shri Gh. Mohammad Ganai son of Ab. Aziz Ganai resident of Heff Tehsil and District Shopian (herein after referred to as detenue ) has been placed under preventive detention must succeed for following reasons:

(2.) THE Constitutional and Statutory safeguards, guaranteed to a person detained under preventive detention law, are meaningless unless and until the detenue is made aware of and furnished all the material that weighed with the detaining authority while making detention order. In the instant case, grounds of detention as well as detention order in question make mention of case FIR No.55/2011 under section 4/5 Ex. Sub. Act, 7/27 A. Act at Police Station Zainapora, to have been registered against the detenue. THE involvement of detenue in the aforementioned case appears to have heavily weighed with detaining authority while making detention order. THE detention record reveals that none of the documents referred to in the detention order was ever supplied to detenue. THE endorsement on the reverse of the detention order made by the Executing Officer HC Bashir Ahmad No.27/SPN of Police Station Zainapora, at the time of execution of detention order does not make a reference to the documents in question and does not record that such documents were supplied to detenue at the time of execution of detention order or immediately thereafter. THE detention record does not indicate that copies of aforementioned First Information Report, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, were ever supplied to detenue. THE material, mentioned above, thus assumes significance in the facts and circumstances of the case. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22 (5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to the detenue. It is only after the detenue has all said material available, that the detenue can make an effort to convince Detaining Authority and thereafter Government, that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied material, on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. THE failure on the part of Detaining Authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable. While holding so, I draw support from Dhannajoy Dass versus District Magistrate (AIR 1982 SC 1315); Sofia Ghulam Mohammad Bam versus State of Maharashtra and Others (AIR 1999 SC 3051); Union of India versus Ranu Bhandari (2008, Cr. L. J. 4567); Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others (S.L.J. 2009 (I) 219); and Tahir Haris versus State and Others (AIR 2009 Supreme Court 2184).