MOHAMMAD YOUSUF RATHER Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) ORDER :- Mohammad Yousuf Rather S/o Ghulam Mohammad Rather R/o Sandipora Budgam, has been taken in preventive detention under Section 8 of the Jammu and Kashmir Public Safety Act, Pursuant to District Magistrate Budgam's detention order PSA/DMB-99/106 dated 19-7-1999. The order of detention prescribes eight months detention on ground of preventing the subject from indulging in activities prejudicial to the security of the State. The detention as also the order is impugned on available grounds, as envisaged by Article 22 of the Constitution and provisions of Jammu and Kashmir Public Safety Act. The two grounds pressed to assail the detention as also the order of detaining authority thereto are :- First, the counsel submits the grounds have not been communicated to the detainee as spelt in para 8 of the petition. The non supply of grounds with material and documents referred in the grounds, is not specifically refuted in counter in so far as in para 8 of the counter, it is stated that the grounds of detention as supplied to the detenue alone were required to be supplied to him. Second, the counsel argues that the detenue has not been afforded any opportunity to make representation against the order of detention to the Government. The detenue's father has been informed/addressed a communication Annexure P2, which in terms informs him to make a representation to the Government against the detention order if he so desired. The detenue at no point of time was informed of his right to make a representation. No record whatsoever, has been made available to show that the petitioner was at any time afforded an opportunity to make representation against the order to the Government as contemplated by Section 13 of the Jammu and Kashmir Public Safety Act and as provided by clause (5) of Article 22 of the Constitution.

(2.) Mr. A. M. Watali, Government Advocate, in reply submits that as no documents or material is referred in the grounds of detention, therefore, no documents have been supplied to detenue. He has been supplied the copy of grounds. He is not prejudiced to make representation. Besides, the counsel contends that the detenue was informed of his right to make representation, through father and thereby he was given an opportunity to make representation.

(3.) The Apex Court in Mangalbhai Motiram Patel v. State of Maharashtra, AIR 1981 SC 510 : (1981 Cri LJ 331) while focusing on the procedural safeguards and constitutional imperatives in the matter of preventive detenion, observed (Para 7) :-