IMPORTANT POINT : Preventive detention – As per constitutional and statutory mandate, detaining authority is under obligation to supply material/documents forming basis for detention of detenu.

JUDGMENT

1. The present appeal has been preferred by the detenu, Muzamil Ahmad Dar, through his father, Ab. Rashid Dar, against the judgment dated 16.02.2022, delivered by a Single Bench of this Court in WP Crl No. 267/2021 in which the detention order No. 87/DMS/PSA/2021 dated 18.10.2021, issued by the District Magistrate, Shopian, was challenged. By virtue of the said detention order, the appellant/detenu was placed under preventive detention in exercise of powers under Section 8 of the J&K Public Safety Act, 1978. The said appellant/detenu was ordered to be lodged at District Jail, Rajouri.

2. In the dossier it is alleged that the detenu came into contact with the militants and used to work as OGW of Let/TRF outfits and also motivated the youth of his area for indulging in anti-national and anti-social activities and he (detenu) is the key motivator always motivates the youth to indulge in militancy. It further reveals that the detenu is a hard core over ground worker (OGW) sympathizer and a promoter of TRF terrorist outfit in Valley.

3. The learned counsel for the appellant-detenu has raised primarily three 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 when there was no FIR registered against the detenu, the detention order was passed on the so called allegations levelled against the detenu, that he was indulging in motivating the youth to join the militancy. In these circumstances, it was submitted by the learned counsel for the appellant-detenu, the detaining authority ought to have satisfied himself with the fact that there was imminent likelihood of appellant-detenu to indulge in anti-national activities that it was necessary to detain the detenu in order to prevent him from indulging in such acts. According to the learned counsel for the appellant-detenu, there is no such satisfaction recorded in the grounds of detention.

4. The second point taken by the learned counsel for the appellant-detenu was that non-supply of relevant material/ documents also vitiated the detention order. In this context, it was the case of the appellant-detenu that no documents at all were supplied to the appellant/detenu. The non-supply of relevant documents seriously undermines the capacity of a detenu to make an effective representation against the detention and that in itself would be a ground to declare the detention order void, though the appellant-detenu submitted the representation before the competent authority but that was not decided by the authority till date. This right flows from the Constitution of India. In support, he referred to the decision of the Supreme Court in the case of Sophia Gulam Mohd. Bham v. State of Maharashtra: AIR 1999 SC 3051.

5. The third and important point raised by the learned counsel for the appellant-detenu was based on the provisions of Section 13 of the J&K Public Safety Act, 1978, which require that the grounds of detention should have been communicated to the detenu in the language which was understandable to him and that he should be afforded the earliest opportunity of making a representation against the order to the Government. According to him, the detenu only understood Kashmiri language and the grounds of detention were in English language and no translated copies of the grounds of detention in Kashmiri were provided to him. This seriously prejudiced his right to make an effective representation and on this ground also the detention order would vitiate the detention. Though the detenu has filed representation, but that was neither considered nor rejected.

In support of his argument, learned counsel for the appellant has referred to and relied upon case titled “Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427”; the detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority sta