The detenue's constitutional right to make an effective representation, guaranteed under Article 22(5) of the Constitution of India, is hindered by the non-supply of vital documents relied upon for the detention, rendering the detention order illegal and unsustainable.

JUDGMENT

Sanjay Dhar, J. - By the instant petition, veracity and legality of the detention order No.DMS/PSA/71/2021 dated 20.10.2021, issued by District Magistrate, Srinagar (for brevity 'detaining authority') has been challenged. In terms of the aforesaid order, Shri Zubair Ahmad @ Raj Koutar son of Ghulam Nabi Bhat resident of Shaheen Mohalla Noorbagh Srinagar (for short 'detenue') has been placed under preventive detention and lodged in District Jail, Baramulla.

2. The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the allegations mentioned in the grounds of detention have no nexus with the detenue and the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been contended that the grounds of detention are vague, on the basis of which no prudent man can make a representation against such allegations. It has been further contended that the statutory safeguards have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner.

3. The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. That the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. It has been further contended that the impugned order has been passed after following all the legal formalities. To substantiate their stand taken in the counter affidavit, the respondents have produced the detention record.

4. I have heard learned counsel for parties and perused the record.

5. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various ground but his main thrust during the course of arguments was on the ground that the detenue was not provided the whole of the material to enable him to make an effective representation against his detention.

6. So far as the ground of challenge urged by the petitioner is concerned, a perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 22.10.221. Report of the Executing Officer in this regard forms part of the detention record, a perusal thereof reveals that it bears the signature of the petitioner. According to it, copy of warrant (01 leaf), notice (01 leaf) and grounds of detention (02 leaves), in total 04 leaves, have been supplied to him.

7. It is clear from the execution report, which forms part of the detention record, that copy of the police dossier has not at all been supplied to the detenue. The grounds of detention also bear reference to proceedings under Section 107 and 151 of the Cr.P.C but it seems that the documents relating to these proceedings have also not been supplied to the petitioner. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while formulating the grounds of detention has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.

8. It needs no emphasis that the detenue cannot be expected