Preventive detention orders must comply with constitutional safeguards, including the right to make an effective representation, which is violated if necessary materials are not provided.

JUDGMENT :

1) The petitioner has challenged detention order No.32/DMB/PSA of 2022 dated 28.09.2022, issued by District Magistrate, Bandipora- respondent No.2 (for brevity “detaining authority”). In terms of the aforesaid order, Waseem Ahmad Malik (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 maintenance of 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 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 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 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 and that the grounds urged by the petitioner are misconceived and without merit. 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 ground that the representation submitted against the detention by the detenue through his father before the respondents was not considered, as a result of which the detention order has been rendered unsustainable in law.

6) It has been specifically pleaded by the petitioner that he had made a representation against his detention through his father. The said representation appears to have been received by the respondents against a proper receipt. The petitioner has placed on record the receipt regarding submission of representation with the respondents. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. Though from a perusal of the detention record, it does appear that the respondents did receive the report of CID regarding representation of the petitioner but there is nothing in the detention record to suggest that any decision has been taken by the respondents in respect of the said representation or that the decision, if any, has been conveyed to the petitioner. The non-consideration or an unreasonably belated consideration of the representation indisputably amounts to violation of constitutional safeguards provided by the provisions of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law. In my said view, I am supported by the judgments of t