The failure to provide necessary materials for representation and non-consideration of the representation violates constitutional safeguards under Article 22(5), rendering the detention order illegal.

JUDGMENT :

1) By the medium of this petition, the petitioner has assailed order of detention bearing No.72/DMK/PSA/2022 dated 27.08.2022, issued by District Magistrate, Kulgam (for brevity “the Detaining Authority”). In terms of the impugned order, Amir Rashid has been placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security, sovereignty and integrity of the State.

2) The petitioner has contended that there has been non-application of mind on the part of the detaining authority while passing the impugned detention order. It has been further contended that the procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that whole of the material that formed the basis of the grounds of detention has not been furnished to the detenue. It has also been contended that the representation of the petitioner against the impugned detention order has not been considered by the respondents.

3) 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.

4) 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 the detenue are highly prejudicial to the maintenance of security of the State.

It is pleaded that whole of the material relied upon by the detaining authority has been furnished to the detenue and contents of 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. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

5) I have heard learned counsel for parties and perused the 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 father before the respondents yet the same was not considered rendering the detention order unsustainable in law.

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 because whole of the material, which formed basis of th