Preventive detention orders require compelling reasons when the individual is already in custody; failure to supply necessary documents violates the right to make an effective representation.

JUDGMENT :

1) Majid Mohammad Rather, the detenue, has filed this petition through his mother, namely, Zareefa, seeking a Writ of Habeas Corpus for quashing the detention order bearing No.68/DMK/PSA/2022 dated 07.07.2022, issued by District Magistrate, Kulgam (the detaining authority). The order is purported to have been passed by the detaining authority in exercise of its powers conferred under clause (a) of Section 8 of the J&K Public Safety Act, 1978.

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 procedural safeguards have not been complied with in the instant case as the petitioner has not been supplied the translated copies of the grounds of detention which prevented him from making an effective representation against his detention.

3) On being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein besides other contentions, it is submitted that detention was necessitated because of involvement of the detenue in very serious offences as mentioned in the FIR registered against him. 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. That the order has been issued validly and legally. The respondents have placed reliance on various judgments of the Supreme Court including Haradhan Saha v. State of W.B (1975) 3 SCC 198 . Learned counsel for the respondents has produced the detention record to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for the parties and perused the material available on 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 the detenue has been disabled from making an effective representation against his detention 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 there has been non-application of mind on the part of the detaining authority as the detenue was already in custody in connection with FIR No.27/2022 for offences under Section 302 IPC, 7/27 Arms Act and 13 UAP Act registered with P/S Kulgam, and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive detention laws.

6) 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 because whole of 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. A perusal of the detention record reveals that the petitioner has been provided copies of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (03 leaves), copies of FIR, statements of witnesses and other relevant documents (01 leaf), (total 08 leaves). If we have a look at the grounds of detention, it bears reference to FIR No.27/2022 of P/S Kulgam. It was incumbent upon respondents to furnish not only the