GHULAM MOHAMMAD WANI Vs. STATE

JUDGEMENT

(1.) CHALLENGE to order no. 16/DMB/PSA of 2012 dated 11.02.2012 whereby District Magistrate, Bandipora respondent no. 2 in the petition, has ordered preventive detention of Shri Ghulam Mohammad Wani son of Ghulam Ahmad Wani resident of Pushwari, Tehsil Sonawari, district Bandipora, must succeed for the following reasons:

(2.) A person on whom preventive detention is slapped has two precious invaluable rights guaranteed by Article 22(5), Constitution of India and Section 13, J&K Public Safety Act, 1978: one, that he is to be handed over the grounds of detention that prompted the detaining authority to exercise powers with proper dispatch under section 8 of J&K Public Safety Act, 1978; and two, to inform the detenue that he has a right to represent against his detention not only to the government but also to the Detaining Authority. The right to represent against the detention can be meaningful only in case the material that weighs with the Detaining Authority is made available to the detenue so that the detenue can make an effort to convince the Detaining Authority and thereafter the Government that he has nothing to do with the material made use of to slap the detention order on him. In the present case, the alleged involvement of the detenue in case FIR 160/2006 under section 7/25 Indian Arms Act and case FIR 246/2011 under sections 307, 120-B RPC, 7/27 Arms Act, appears to have weighed heavily with the Detaining Authority while recording subjective satisfaction that it was necessary to order preventive detention of the detenue so as to prevent him from acting in any manner prejudicial to the security of the state. The Receipt of Grounds of Detention and available on detention record reveals that only grounds of detention have been handed over to the detenue. There is nothing on record to suggest that copies of FIRs relied upon by the Detaining Authority to slap the detention order on the detenue, have been supplied to the detenue, let alone the statement of witnesses recorded under section 161 Cr. P. C. and the seizure memos, if any, prepared during the course of investigation, The detenue, therefore, has been prevented from making an effective and meaningful exercise of his constitutional and statutory safeguards. It is pertinent to mention that endorsement recorded on reverse of the detention order by Sub Inspection, Nazir Ahmad, no. 191/NGO of P/S Hajin also does not indicate that the copies of FIRs, copies of statement recorded under section 161 or seizure memos, if any, were handed over to the detenue at the time of execution of the detention order.

(3.) DETENTION record be returned to Mr. Alla ud Din, DAG.