Mushtaq Ahmad Wani vs State Of J&K And Ors

The detenu, Mushtaq Ahmad Wani son of Gh. Nabi Wani resident of Kurag Ganderbal, District Ganderbal, through his cousin brother seeks

quashment of detention order no. 77-DMG-PSA-2019 dated 09.08.2019, purporting to have been passed by District Magistrate Ganderbal, with

consequent prayer for release of the detenu forthwith.

The petitioner-detenu has challenged the order of detention on the following grounds:

“a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso

in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody;

b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention

order;

c) that the detenu has not been informed that he can make a representation against his detention order nor the respondents disclosed to him before

which authority of Government the detenu can make the representation.

d) that the detention order has been passed in violation of the constitutional safeguards as provided in Article-22 (5) of the Constitution of India and

provisions of J&K Public Safety Act 1987â€​

Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention

order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition. Detention records have also been produced.

Heard learned counsel for the petitioner as well as the learned counsel for the respondents, perused the writ records as also the detention record.

Learned counsel for petitioner has submitted that the grounds taken in the detention order and the material referred to and relied upon has no

relevance because the detenu was enlarged on bail by the competent court of law, and was facing trial in the competent court of law. It is submitted

that after abrogating Article 370 the detenu has reportedly motivating youth to stone pelting at security forces at various places therefore again booked

under unlawful activities by Police Station, Ganderbal in case FIR no. 51/2019 u/s 10,13 ULA (P) Act. Since the detenu is already facing trial before

the competent court of law, therefore, there is no possibility that the detenu be implicated in the activities prejudicial to the maintenance of public

order. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority, therefore, the detention order is

bad in law. Petitioner has in order to strengthening his submission referred to and relied upon (2006) 2 Supreme Court Cases 664 titled T. V Sravanan

Alias S.A.R Prasana v. State through Secretary and anr.

The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an

effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the

detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the

right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point, both of the

Supreme Court and of various High Courts, including our own High Court, are galore. I may refer to one such judgment of the Supreme Court herein.

In Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, the Apex Court, relying on its earlier judgments in Khudiram Das v State of W. B.,

(1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531, in paragraph 10 of the judgment, has held as under:

“Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases: (a) all

documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in

arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily

and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and (b) all such

material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of

the two duties cast on the detaining authority under Article 22(5) of the Constitutionâ€​.

In Khudiram case (supra), the Apex Court has explained what is meant by ‘grounds on which the order is made’ in context of the duties cast

upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

In Smt. Icchu Devi Case (supra), the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon

in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of

detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a

necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention,

because unless the former right is available the latter cannot be meaningfully exercised.

Examining the present case on the touch stone of the above settled position of law, there are specific averments made in the petition that the detenu

was not supplied the materials relied upon by the detaining authority. It is stated that the detenu was provided material in the shape of grounds of

detention. No other material / documents, as referred to in the order of detention and the grounds, are shown to have been supplied to the detenu. On

these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, the detenu having been prevented from making

an effective and purposeful representation against the order of detention.

Accordingly, the detention order no. 77-DMG-PSA-2019 dated 09.08.2019 is quashed and detenu Mushtaq Ahmad wani son of Gh. Nabi Wani

resident of Kurag Ganderbal, District Ganderbal, is directed to be released from preventive custody forthwith. The matter stands accordingly disposed

of. Detention record be returned to learned Government Counsel.