The detenue's right to make an effective representation against preventive detention, as guaranteed under Article 22(5) of the Constitution of India, must be upheld, and failure to supply the material forming the basis of the detention renders the detention order illegal and unsustainable in law.

JUDGMENT :

1. The petitioner has challenged detention order No.DMS/ PSA/11/2022 dated 07.04.2022, issued by District Magistrate, Srinagar-respondent No.2 (for brevity “detaining authority”). In terms of the aforesaid order, Bilal Ahmad Ganie @ Billa son of Abdul Rehman Ganie resident of Batapora, Pandach (for short “the detenue”) has been placed under preventive detention and lodged in Central Jail, Jammu (Kotbhalwal), in order to prevent him from indulging in the activities which are prejudicial to the security of the State.

2. The petitioner has contended that the detaining authority has issued the impugned detention order mechanically without application of mind 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 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. It has also been contended that the representation of the petitioner against the impugned order of detention has not been considered.

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 maintenance of public order. It is pleaded that whole of the material relied upon by the detaining authority has been furnished 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 and that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention but despite that he has not chosen to file any representation. It is further contented in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the impugned order has been issued validly and legally.

4. The respondents have neither chosen to appear at the time of final hearing, nor have they produced the detention record.

5. I have heard learned counsel for petitioner and perused the material on record.

6. 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’s right of making an effective representation against his detention has been violated as whole of the material, on the basis of which the grounds of detention have been formulated, has not been supplied to him.

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

(III) That there has been non-application of mind on the part of the detaining authority as the detenue had already been admitted to bail in FIR No.48/2020 of P/S Soura but this fact has nowhere been mentioned in the grounds of detention.

7. The first ground projected by the learned counsel for the petitioner that the detenue has been disabled from making an effective representation against the order of detention as the material, which formed basis of the grounds of detention and the consequent order of detention, has not been furnished to him, appears to have substance. Nothing has been brought on record by the respondents to suggest that the material forming basis of the grounds of detention and the consequent order of detention has been supplied