Point of Law : Preventive detention - Preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial.

JUDGEMENT :

1. The Order No.02/DMB/PSA of 2021 dated 08.01.2021, issued by District Magistrate, Bandipora, placing detenu, namely, Umar Fayaz Mir S/o Fayaz Ahmad Mir R/o Nadihal Mir Mohalla Tehsil and District Bandipora, under preventive detention in terms of J&K Public Safety Act, so as to prevent him from acting in any manner prejudicial to maintenance of public order and directing his lodgment in Central Jail, Srinagar, has been challenged in this petition through his father, on the following grounds:

(i) that impugned detention of detenu is manifestly fraud on his rights of detenu as having been passed in flagrant violation of rights guaranteed to him by Article 21 and 22 of the Constitution of India and in utter disregard to provisions of J&K Public Safety Act, 1978.

(ii) that grounds of detention on the basis whereof detenu has been detained are vague, cryptic, indefinite and lack specific character and under such circumstances no representation could be filed by detenu against order of detention.

(iii) that order of detention or the record does not disclose compelling reasons, which are supposed to be based on material on record, prompting detaining authority to pass detention order notwithstanding the fact that detenu was in custody for alleged involvement in a substantive offence. Since the very basis on which detention could be ordered under such circumstances do not exist, the order of detention is rendered bad.

(iv) that not even an iota of material on which impugned detention order and alleged grounds of detention are supposed to be founded, including copy of FIRs, dossier referred to in the grounds of detention have been furnished or made available to detenu by respondents. Non-supply of such material has prevented detenu from making an effective representation against detention in exercise of fundamental rights guaranteed to detenu by Article 22 of the Constitution of India.

(v) that detenu is not well-read person. He does not, at all, understand English language. Grounds of detention are in English language and have not been explained or communicated to detenu in the language understood by him making it impossible for detenu to prefer any representation against the detention order.

2. Learned counsel for respondents has filed counter affidavit as well as produced the detention record. It is submitted that there is no illegality in the order of detention, as it was necessary to place detenu under preventive detention so as to prevent him from acting in any manner prejudicial to the maintenance of public order. He has been detained validly by virtue of order of detention passed by District Magistrate, Bandipora. All the material relied upon by detaining authority was communicated to detenu in the language he understands. Thus, all statutory requirements and constitutional guarantees have been fulfilled and complied with by detaining authority and that detaining authority after arriving at subjective satisfaction has passed order of detention.

3. I have heard learned counsel for parties and considered the matter.

4. The main ground taken in this writ petition is that detenu was not in a position to make an effective and meaningful representation either to detaining authority or to the Government against his detention because he was not provided the material relied upon and referred to by detaining authority while passing detention order and, therefore, there is violation of provisions of Article 22 (5) of the Constitution of India and in absence of such material detenu was prevented from making an effective representation.

5. To evaluate the submissions made by learned counsel for parties vis-a-vis furnishing of material to detenu that has been relied upon by detaining authority while passing impugned detention order, it would be appropriate to go through the detention record, produced by counsel for respondents. Detention record contains, amongst others, Execution Report, Receipt of Detention Papers, detention order, commu