Preventive detention orders must comply with procedural safeguards, including supplying all material to the detenue for effective representation, as mandated by Article 22(5) of the Constitution.

JUDGMENT :

1) The petitioner has challenged order of detention bearing No.147/DMS/PSA/2022 dated 25.08.2022, issued by District Magistrate, Shopian - respondent No.2 herein. In terms of the aforesaid order, Shakir Ahmad Thoker (hereinafter referred to as the detenue), has been placed under preventive detention so as to prevent him from acting in any manner prejudicial to security of the UT/Country.

2) The petitioner has 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 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 been further contended that the representation submitted by the petitioner against his detention has not been considered.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind while passing the impugned order of detention and that the detenue has been provided all the material which has been relied upon by the detaining authority while passing the detention order. 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 ground that the detenue was not provided whole of the material to enable him to make an effective representation against his detention.

5) So far as the aforesaid ground of challenge is concerned, a perusal of the material on record reveals that the petitioner has received only grounds of detention consisting of four leaves. That means, copies of PSA warrant, notice of detention and order of detention have not been provided to the petitioner. If we have a look at the grounds of detention, it bears reference to two FIRs i.e., FIR Nos.14/2022 and 15/2022 of P/S Zainapora. It was incumbent upon the respondents to furnish not only the copies of the FIRs but also the statements of witnesses recorded during investigation of the said FIRs and other material on the basis of which petitioner’s involvement in the FIRs was shown, which has not been done. Even the copy of the dossier of detention has not been supplied to the petitioner. Thus, the contention of the petitioner that whole of the material relied upon by the detaining authority, while framing 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.

6) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) Ram Krishan Bhardwaj v