Failure to furnish all material forming the basis of preventive detention and non-consideration of the detenue's representation against the detention amount to violations of constitutional safeguards and render the detention order unsustainable in law.

JUDGMENT :

1) By the medium of instant petition, the petitioner has challenged the legality and veracity of the order No.52/DMP/PSA/2021 dated 18.10.2021, issued by District Magistrate, Pulwama - respondent No.2 herein, in terms whereof, Manzoor Ahmad Mir S/o Gh. Ahmad Mir R/o Kisergam Tehsil Kakapora (hereinafter referred to as the detenue), has been ordered to be taken into preventive custody and lodged in Central Jail, Jammu (Kotbalwal).

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 that 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, non-existent on which no prudent man can make a representation against such allegations. It has been further contended that the Constitutional procedural 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 and that the representation filed by him has not been considered by the respondents.

3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they 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. It is contended that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. That the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have placed reliance on the judgment of the Supreme Court in Hardhan Saha v. State of W.B (1975) 3 SCC 198. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main, thrust during the course of arguments, was on the following grounds:

(I) That the detenue was not furnished the whole of the material to enable him to make an effective representation against his detention.

(II) That although a representation was submitted against the detention by the detenue through his father before the respondents yet the same was not considered thereby rendering the detention order unsustainable in law.

5) So far as the first ground of challenge is concerned, a perusal of the material on record reveals that the petitioner has received detention warrant (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other related relevant documents (Nil) (total 05 leaves), and in token whereof, his signatures have been obtained on the document under the style ‘Execution Report’, which forms part of detention record. Nothing has been brought on record to indicate that the copy of the police dossier has been furnished to the detenue. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue.

6) In the case of preventive detention, a detenue has the right under Article 22(5) of the Constituti