MUSHTAQ AHMAD GANAI Vs. STATE

JUDGEMENT

(1.) Through the medium of instant habeas Corpus Petition, detenue -- Mushtaq Ahmad Ganai @ Niyama seeks quashment of detention order No. DMB/PSA/08 of 2013 dated 17.09.2013 which has been slapped upon him by District Magistrate Budgam invoking powers under Section 8 of the Jammu and Kashmir Public Safely Act as his activities were found to be "prejudicial to the maintenance of public order". The detenue stands lodged in Central Jail--Srinagar. Respondents have filed counter resisting the petition on the ground that in view of the activities of the detenue, the impugned detention order was passed on application of mind and the grounds of detention were served upon the detenue along with communication dated 17.09.2013 where under he was made known about the preventive detention and of his right to file representation to Government against his detention.

(2.) On perusal of the grounds of detention, it comes to fore that the detenue is alleged to be a known miscreant of Harpora Galwanpora Budgam and a prime instigator, instigating the youth of Budgam to indulge in illegal activities against a minority sect of Muslims thereby creating feelings of enmity and disharmony on sectarian grounds. Cases under FIR Nos. 237/2013 under Sections 147, 148, 149, 505(2), 336, 427, 506 RPC and 256/2013 under Sections 147, 148, 149, 336, 427, 505(2) RPC are said to have been registered against the detenue and his associates at Police Station Budgam in regard to such illegal activities which disturbed public order. It further emerges from the grounds of detention that despite invoking of normal law against the detenue, the desired results were not yielded. It is stated in the grounds of detention that the detenue was already in custody and he had moved an application for bail. The detaining Authority was apprehensive that in the event of detenue being enlarged on bail, he would indulge in the activities creating sectarian disharmony. Therefore, in order to stop the detenue from indulging in activities which are "prejudicial to the maintenance of public order", his detention under the Jammu and Kashmir Public Safety Act was imperative.

(3.) Learned counsel for petitioner contended that the material forming the basis for grounds of detention including the copy of letter dated 16.09.2013 and the material produced by respondent No. 3 before respondent No. 2 has not been supplied to the detenue by respondent No. 2 to enable him to make an effective representation against the order of detention. Information given to father of detenue, who was already dead that the detenue could make a representation to the detaining Authority, was of no consequence. This demonstrated total non-application of mind on the part of respondent No. 2 in detaining the detenue and addressing letter dated 17.09.2013 to a dead person. Thus, it is contended, the right guaranteed under Article 22(5) of the Constitution of India stands infringed.