The importance of supplying the material on which the detention order is based to the detenue and the prohibition on relying on previously quashed grounds for a fresh detention order.

Honble Mr. Justice Hasnain Massodi, Judge

1. Challenge to order No. DMS/PSA/02/2011 dated 07.04.2011, whereby District Magistrate Srinagar respondent No. 2 herein, has ordered preventive detention of Shri Shabir Ahmad Ganie son of Ghulam Mohi-ud-din Ganie resident of Zainakot, H.M.T. Srinagar (herein after referred to as 'detenue') and directed his lodgement in Kote-Bhalwal Jail, Jammu, must succeed for the following reasons:

1. The grounds of detention make reference to case - FIR No. 153/2010 under section 147, 148, 149, 535, 336, 427, 153-A RPC; FIR No. 189/2010 under section 147, 148, 149, 535, 336, 341, 427, 307, 435 RPC, 7/27 A.Act of Police Station Parimpora; and FIR No. 76/2010 under section 307, 147, 148, 336, 332, 427 RPC of Police Station Batamaloo, to have been registered against the detenue. The involvement of detenue in the aforementioned cases appears to have heavily weighed with the detaining authority while making detention order. The detention record reveals that none of the documents referred to in the detention order was ever supplied to detenue. It is pertinent to point out that the detaining authority, in grounds of detention after detailing background in which aforesaid cases were registered against detenue, proceeds to opine 'Therefore, it is clear that your activities are highly prejudicial to the maintenance of public order.....'. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The detention record does not indicate that copies of aforementioned First Information Reports, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, were ever supplied to detenue. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5), Constitution of India and Section 13, J&K Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to detenue. It is only after the detenue has all said material available, that the detenue can make an effort to convince detaining authority and thereafter Government, that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied material, on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. The failure on the part of Detaining Authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable. While holding so, I draw support from Dhannajoy Dass versus District Magistrate ( AIR 1982 SC 1315); Sofia Ghulam Mohammad Bam versus State of Maharashtra and Others ( AIR 1999 SC 3051); Union of India versus Ranu Bhandari ( 2008 Cri L. J. 4567); Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others (2009 (I) S.L.J. 219); and Tahir Haris versus State and Others ( AIR 2009 sc 2184).

2. Preventive detention as held in A.K.Gopalan Vs. State of Madrass (1950) SCR 88 and reiterated in Rekha Vs. State of Tamilnadu AIR 2011 SCW 2262 is by nature repugnant to democratic ideas and an anathema to the rule of law. The Supreme Court in Rekha's case (supra) while emphasising that Article 22(3)(b) Constitution of India is to be read an exception to Article 21 of the Constitution of India and not allowed to nullify the right to personal liberty guaranteed under the later, observed; 'Since however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal, but we must confine the power of preventive detention to very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of Constitution of India, which was won after long ardous, historic