Failure to provide necessary material and communicate representation rejection violates constitutional rights under Article 22(5), rendering detention order illegal.

JUDGMENT :

1) Through the medium of present petition, the petitioner has assailed detention order bearing No.169/DMS/PSA/2023 dated 17.07.2023, issued by District Magistrate, Shopian (for brevity "detaining authority"). In terms of the aforesaid order, Jahangir Ahmad Malik son of Abdul Rahim Malik resident of Pehlipora Pinjoora Tehsil Shopian District Shopian (for short "detenue") has been placed under preventive detention and lodged in District Jail, Baramulla.

2) The petitioner has contended that the allegations mentioned in the grounds of detention have no nexus with the detenue and that the grounds of detention are vague, non-existent, on the basis of which no prudent man can make an effective representation. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material that formed basis of the impugned detention order has not been supplied to the petitioner. It has been also contended that the representation submitted by the petitioner against his detention has not been considered, as no result of consideration thereof has been conveyed to the petitioner.

3) The respondents have resisted the petition by filing their reply affidavit, wherein they have contended that the activities of the detenue are highly prejudicial to the security of the UT/Country. 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 has been further contended 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 also averred 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 produced the detention record to lend support to the stand taken in the counter affidavit.

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 grounds but his main thrust during the course of arguments was on the following grounds:

(i) That representation of the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights.

(ii) That the detenue has not been provided the whole of the material, which prevented him from making an effective representation against his detention.

6) The first ground projected by learned counsel for the petitioner is that the that representation of the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights.

7) In the above context, the petitioner has placed on record a copy of the representation dated 07.08.2023 along with his writ petition (Annexure-IV). He has also placed on record postal receipts dated 09.08.2023, which indicates that the representation has been sent to the Principal Secretary to Government, Home Department and District Magistrate, Shopian.

8) The record produced by the respondents reveals that the representation of the petitioner had been placed before the Advisory Board but the same has been rejected on 21.02.2023. Thus, it is an admitted fact that the respondents had received the representation of the petitioner against the impugned order of detention but result thereof has not been conveyed to the petitioner. The respondents have not placed on record anything to show that the order of rejection of representation