The right to make representation against detention is a fundamental right, and preventive detention should not be exercised without compelling reasons when the individual is already in custody.

JUDGEMENT/ORDER :

1. The petitioner, who is under preventive detention, has filed this petition through his brother Mohammad Younis Dar seeking quashing of Order No. 38/DMP/PSA/20, dated 09.11.2020 ('the detention order') issued by the District Magistrate Pulwama ('the Detaining Authority') in exercise of powers conferred under section 8 of the Jammu and Kashmir Public Safety Act, 1978 ('the Act' hereafter). The detention order is issued by the Detaining Authority to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the security of the State.

2. The impugned order has been assailed by the detenu primarily on the following grounds:-

(i) That the grounds of detention, on the basis of which impugned order has been passed, were never served upon the detenu nor the material relied upon in the grounds of detention was supplied to the detenu;

(ii) That the representation made by the detenu on 14.11.2020 seeking revocation of the detention order has not been considered;

(iii) That the detenu was in custody in FIR No. 35/2020 under sections 13, 18, 20 and 39 of ULAP Act at the time of detention and the Detaining Authority has not indicated any compelling reasons for issuance of the order of detention;

(iv) That the order of detention is an outcome of total non-application of mind by the Detaining Authority.

3. The petition is contested by the respondents. In the reply affidavit filed by the Detaining Authority, it is submitted that pursuant to the recommendations made by the police, supported by dossier containing relevant material, the Detaining Authority formed an opinion that it is imperative to put the petitioner under preventive detention with a view to deter him from acting in any manner which is prejudicial to the security of the State. It is the stand of the Detaining Authority that not only the detenu was served with the copy of the detention order, Communication letter and grounds of detention, he was also informed about his right to submit representation against his detention. Regarding the allegation of non-application of mind, it is contended that the grounds of detention clearly and unambiguously indicate the trail of activities of the detenu which are suggestive of the fact that detenu is an incorrigible perpetrator of terror and, therefore, allowing him to remain at large is prejudicial to the security of the State. There is, however, no whisper in the reply affidavit by the Detaining Authority as to whether the Detaining Authority or the Government received the representation claimed to have been made by the detenu on 14.11.2020 and, after receipt, how the same has been dealt with by the competent authority. The reply affidavit also does not indicate the compelling reasons to put the detenu under preventive custody when he was already in the judicial custody with the State in case FIR No. 35/2020.

4. The matter was heard and reserved on 4th of April, 2020 and Mr. Asif Maqbool, learned Dy. A.G. was directed to produce the original record within one week. It is over two weeks now the learned Government counsel has failed to produce the record. The matter was thus considered in the absence of the record.

5. Having heard the learned counsel for the parties and perused the record, I am of the view that the impugned order of detention cannot sustain for more than one reason.

6. The detenu has placed on record a copy of the representation against his detention made to the District Magistrate Pulwama on 14.11.2020, which, as per the receipt appended, is received by the office of the Detaining Authority on 16.11.2020. As is apparent from the reading of the reply affidavit filed by the Detaining Authority, the said representation moved by the detenu has not been considered and disposed of. In the face of the clear averments made in the petition, supported by documentary evidence and in the absence of rebuttal by the Detaining Authority, this Court is left with no option but to accept the content