Point of Law: Validity of detention - While serving grounds of detention were fully explained to detenu but Apex Court held that, was not a sufficient compliance with mandate of Article 22(5) which requires that grounds of detention must be communicated to detenu.

JUDGMENT :

Impugned in this Heabus Corpus petition with a prayer for quashment thereof is the detention order no. 58/DMK/PSA of 2019 dated 19.10.2019, purporting to have been passed by District Magistrate, Kupwara, whereunder detenu namely Javaid Ahmad Bhat s/o Ghulam Ahmad Bhat R/o Khanu Babagund Tehsil Kralgund, District Kupwara, is under detention.

2. The detenu, through his brother, challenges the aforesaid detention order through the medium of aforesaid petition, inter alia, on the grounds that the order of detention suffers from non-application of mind;

“a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody.

b) that there is total non-application of mind while passing the detention order without reflecting any plausible ground;

c) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;

d) that the detaining authority has not prepared the grounds itself, which is a pre-requisite for him before passing any detention order;

f) that while passing the order of detention against the detenu, the respondent no.2 has violated all the procedural safeguards enshrined in Art. 22 (5) of the Constitution of India;

g) that the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention order on such grounds is unjustified and unreasonable.”

3. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and seeks dismissal of the Heabus Corpus petition.

4. The learned counsel for the petitioner has raised primarily four issues before the Court questioning the validity of the detention. The first point taken by the learned counsel for the petitioner is that the detention order was passed while the detenu was already in custody in respect of the criminal case under FIR No. 08/2019. In these circumstances, it was submitted by the learned counsel for the petitioner, the detaining authority ought to have satisfied himself with the fact that there was imminent likelihood of release of the detenu in that case and that it was necessary to detain the detenu in order to prevent him from indulging in prejudicial activities. According to the learned counsel for the petitioner-detenu, there is no such satisfaction recorded in the grounds of detention. He placed reliance on the decision of the Supreme Court in the case titled, “Anant v. State of Maharashtra reported as AIR 1987 Supreme Court, 137; Surya Prakash Sharma v. State of U.P. and others: 2017 (II) SLJ 650; AIR 1999 Supreme Court 3051; 1994 SCC (Cri) 1691; 2007 (I) SLJ 136, to submit that since the said satisfaction was not recorded, the detention order was vitiated.

5. The second point taken by the learned counsel for the petitioner was that non-supply of relevant material/documents also vitiated the detention order. In this context, it was the case of the petitioner-detenu that no documents at all were supplied to the petitioner-detenu. The non-supply of relevant documents seriously undermines the capacity of a detenu to make an effective representation against the detention order and that itself would be a ground to declare the detention void.

6. The third point raised by the learned counsel for the petitioner was based on non-application of mind of the detaining authority with reference to having not mentioned that the detenu was already in custody while passing the detention order.

7. The fourth point raised by the learned counsel for the petitioner-detenu was based on vagueness in grounds of detention.

8. The learned counsel for petitioner (detenu) further submits that the d