JUDGMENT

SANJAY DHAR, J. –

1. The petitioner has challenged detention order No.DMS/ PSA/109/2021 dated 08.09.2023, issued by District Magistrate, Srinagar-respondent No.2 (for brevity “detaining authority”). In terms of the aforesaid order, Musavir Nabi Bhat (for short “the detenue”) has been placed under preventive detention and lodged in Central Jail, Jammu Kotbhalwal, in order to prevent him from indulging in the activities which are prejudicial to the maintenance of security of the State.

2. The petitioner has contended that the detaining authority has issued the impugned detention order mechanically without application of mind, inasmuch as the procedural safeguards envisaged under Constitution of India have not been complied with. It has been contended that that the grounds of detention are vague, obscure, indefinite and ambiguous on which no prudent man can make a representation against such allegations. It has been further contended that whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner.

3. Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the maintenance of security of the State. It is pleaded that whole of the material relied upon by the detaining authority has been furnished to the detenue and the same was read over and explained to him; that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention but despite that he has not chosen to file any representation. It is further contented in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the impugned order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

4. I have heard learned counsel for parties and perused the record.

5. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the ground that the detenue’s right of making an effective representation against his detention has been violated as whole of the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him.

6. The ground projected by the learned counsel for the petitioner that the detenue has been disabled from making an effective representation against the order of detention as whole of the material, which formed basis of the grounds of detention and the consequent order of detention, has not been furnished to him, appears to have substance. A perusal of the detention record reveals that the petitioner has been provided copies of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other relevant documents (01 leaf), (total 06 leaves). If we have a look at the grounds of detention, it bears reference to FIR No.51/2017 of P/S Nowhatta. It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner’s involvement therein FIR is shown. All this material would run in dozens of pages and it is impossible that all this material would be covered in only one leaf. Even the copy of the dossier of detention has not been supplied to the petitioner.

7. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.

8. It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184).

9. Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.

10. The detention record be returned to the learned counsel for the respondents.

Petition allowed.

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