Non-supply of material relied upon by the detaining authority to the detenu renders the detention unsustainable, as it deprives the detenu of the right to make an effective representation against his detention, as provided under Article 22(5) of the Constitution of India.

1. Fayaz Ahmad Malik has filed this petition through his brother Abdul Majid Malik, seeking quashing of his detention Order No. 622/DMB/PSA/09 dated 24.03.2009 issued by District Magistrate Baramulla under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, on the ground that detention has been ordered by the detaining authority without there being any record and without application of mind. It is further contended in the petition that detenu was not provided with the material which had been relied upon by the District magistrate while contemplating his detention, so as to enable him to make an effective representation against his detention, rendering his detention illegal.

2. Justifying the petitioners detention, learned State counsel urged that all what was required to be supplied under law had been supplied to the detenu and no prejudice has been caused to him in exercising his right of making representation against his detention.

3. I have considered the submissions of learned counsel for the parties and perused the detention record produced by learned State counsel.

4. Perusal of grounds of detention reveals that petitioners detention has been ordered on the basis of his activities of indulging in Forest Smuggling, pertaining to the years 2006-2009. There is nothing on records to show that material relied upon by the detaining authority, i.e. Dossier and other connected documents, were supplied to the detenue. In terms of the detention record, what was supplied to the detenue on 02.04.2009, as is evident from the receipt obtained from him in this regard, was the detention order issued on 24.03.2009 consisting of one leaf only and nothing beyond that.

5. Non-supply of the material relied upon by the detaining authority, to the detenu thus deprives his right to make effective representation against his detention. The omission of the respondents to supply the detenue the material that had weighed with the detaining authority while directing his detention, renders the detention unsustainable as effective representation contemplated by Article 22(5) of the Constitution of India may not be conceived unless the material that weighed with the Detaining Authority, had been supplied to the detenue. In this view of the matter, the detention order cannot be sustained. I am supported in taking this view by a judgment of Supreme Court of India in Thaira Haris v. Government of Karnataka, reported as 2009 Cr. Law Journal, 2451, where their lordships have held as under:-

"Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the ground of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention."

6. Accordingly, allowing this petition and quashing Order No. 622/DMB/PSA/09 dated 24.03.2009 issued by District Magistrate Baramulla, detenu Fayaz Ahmad Malik S/O Mohd Akbar Malik R/O Manchi Khud tehsil Tangmarg District Baramulla is directed to be released from custody forthwith, if not required in any other case.

Detention record be returned to the learned State counsel.

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