Jammu & Kashmir High Court
Mohammad Javed Naik vs State And Others on 3 November, 2008
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU HC(W) no. 38 of 2007 Mohammad Javed Naik petitioner State and others respondent
! ^Mr. S.C.Gupta, AAG MR. JUSTICE J. P. SINGH, JUDGE Date : 03/11/2008 :Judgment ________________________________________________________ Mohammad Javed Naik has filed this petition through his father Mohammad Yousaf Naik seeking quashing of District Magistrate Ramban's Order no. DMR/PSA/07/09 dated 07.11.2007 besides a command to the respondents to set him to liberty and pay him compensation for his illegal detention. It is stated by him that he was a regular student of 10th class in Government High School, Dharm-Gool when while on his way to the school on 21.11.2007 he was summoned to Police Post Sangaldan and then to Police Station, Gool where he was arrested by the Station House Officer of the Police Station. He is stated to have been later shifted to Jammu where he was detained pursuant to the orders of District Magistrate, Ramban.
Denying the allegations appearing in the grounds of detention relied upon by the District Magistrate in directing his detention under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, as incorrect, the petitioner has alleged that his detention was bad in law because the respondents had violated the provisions of Article 22 (5) of the Constitution of India read with Section 13 (1) of the Jammu and Kashmir Public Safety Act, 1978, in not supplying him the material i.e. the report of the Senior Superintendent of Police, Ramban, the seizure memo in case FIR No. 30/2006, the statements of the witnesses along with other relevant material which had been relied upon by the District Magistrate in directing his detention. Justifying petitioner's preventive detention, District Magistrate, Ramban has stated that the petitioner had been indulging in anti-national and terrorist activities which were prejudicial to the security of the State and as such the petitioner was required to be detained under section 8 of the Public Safety Act so as to prevent him from acting in any manner prejudicial to the security of the State. He says that no prejudice had been caused to the petitioner as all relevant material relied upon by the detaining authority had been supplied to him and he had been informed of his statutory right to make representation against his detention. None had appeared for the petitioner when this petition was called on for hearing.
Mr. Gupta, learned Additional Advocate General, when called upon to indicate as to whether the material relied upon by the detaining authority had been supplied to the detenu, frankly conceded that all the material which had been relied upon by the District Magistrate which included dossier of Superintendent of Police, Ramban and FIR no. 30/2006 registered at P/S Gool, had not been supplied to the detenu who according to the records had been supplied only the grounds of detention. Learned counsel had produced the records of the District Magistrate for perusal. I have gone through the detention records produced by learned State counsel and find that the respondents had omitted to supply the police Dossier and the copy of FIR no. 30/2006 registered under Sections 121/A RPC, 7/27 Arms Act at Police Station, Gool, mention whereof had been made by the District Magistrate in the grounds of detention to the petitioner.
Non-supply of the material which the District Magistrate had relied upon in directing petitioner's detention, to the petitioner, deprives him of his fundamental right, guaranteed under Article 22 (5) of the Constitution of India, to make an effective representation to the Government against his detention, in that, representation contemplated under Article 22 (5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act, 1978 may not be effective unless the detenu had been apprised of all the material which had entered the mind of the detaining authority while contemplating exercise of jurisdiction under Section 8 of the Jammu and Kashmir Public Safety Act and passing order restricting one's fundamental right to liberty. Non-supply of the material would thus result in prejudice to the detenu in commenting on the material relied upon by the District Magistrate while making representation against the detention. District Magistrate's order no. DMR/PSA/07/09 dated 07.11.2007, thus, becomes unsustainable being violative of 5 Article 22 (5) of Constitution of India read with Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Allowing this petition, the petitioner's detention is, accordingly, quashed and he is ordered to be set to liberty forthwith, if not required, in any other case. Records be returned to the State Counsel. (J. P. Singh) Judge JAMMU