Ghulam Mohammad Wani vs State and another

Hasnain Massodi, Judge

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:

The Detaining Authority surprisingly, in the detention order has made reference to grounds of detention placed before him by Superintendent of

Police Bandipora, least realizing that the grounds are to be formulated by the Detaining Authority and such duty is not to be delegated to some

other officer. Needless to mention that the Detaining Authority may receive inputs from Superintendent of Police or for that matter any intelligence

agency but as far as the duty to formulate the grounds of detention is concerned, it rests with the Detaining Authority and not the Superintendent of

Police. The detention order is liable to be quashed on this ground alone.

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 u/s 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 u/s 7/25 Indian Arms Act and case FIR 246/2011 under sections

307, 120B 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 u/s 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 u/s 161 or seizure memos, if any, were

handed over to the detenue at the time of execution of the detention order. The detention record made available by Mr. Alla ud Din, DAG, does

not indicate that the detenue was informed at the time of execution of the detention order that he may represent against his detention to the

Detaining Authority pending approval of the detention order by the government in terms of section 8(4) of J&K Public Safety Act. It needs no

emphasis that the detenue has a right to represent against the detention not only to the government but also during the period intervening the

execution of the detention order and its approval by the government. The right to life and personal liberty guaranteed under Article 21, Constitution

of India is not suspended during the interval between the execution of detention order and the approval of the detention order by the government.

The detenue has a right to convince the Detaining Authority that all its apprehensions regarding the alleged activities of the detenue are grossly

misplaced and that the detention order deserves to be revoked and the detenue let of from detention even before it is placed before the

government for approval.

So viewed, the petition succeeds. Resultantly, the detention order No. 16/DMB/PSA of 2012 dated 11.02.2012 is quashed. The detenue be let

off from the detention ordered vide detention order No. 16/DMB/PSA of 2012 dated 11.02.2012.

Detention record be returned to Mr. Alla ud Din, DAG.