The failure to provide essential documents to a detenue violates Article 22(5) of the Constitution, rendering the detention order illegal.

JUDGMENT :

1) Impugned in this petition is the order of detention bearing No.146/DMS/PSA/2022 dated 25.08.2022, issued by District Magistrate, Shopian - respondent No.2 herein. In terms of the aforesaid order, Ishfaq Ahmad Dar (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 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 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.

3) The respondents have resisted the petition by filing a reply affidavit thereto. In their reply affidavit, the respondents have submitted that the activities of detenue are highly prejudicial to the security of the State. It is pleaded that the material relied upon by the detaining authority was handed over to the detenue and the same was read over and explained to him. It is 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 further claimed in the reply affidavit that all the statutory requirements and constitutional guarantees have been adhered to and complied with by the detaining authority and that the order has been issued validly and legally. In order to buttress their stand, the respondents have produced the detention record.

4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but her 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 FIR No.19/2022 of P/S Shopian. It was incumbent upon the respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner’s involvement in the FIR is shown, which has not been done. Even the copy of the dossier of detention has not been supplied to the petitioner.

6) Thus, 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. 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.

7) 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 Soph