Non-communication of detention grounds violates the right to representation under Article 22(5).

1. Subject Javid Ahmed Khan is detained by District Magistrate Srinagar (respondent No. 2) on 15-1-02 under S. 8 of J. and K. Public Safety Act, 1978 under his order No. DMS / PSA / 49 dated 15-1-02. This order has been implemented and detenu taken in preventive custody. The order and the consequent detention is under challenge in this petition. Notwithstanding the number of grounds taken the petitioner's counsel urges lone ground to canvass that detention is vitiated for non - supply of record and material referred in the grounds and thereby the detenu is disabled to make an effective and meaningful representation against the order to Government within the meaning of Art.22(5) of the Constitution.

2. Ld. Counsel for the respondents submits that the grounds of detention have been supplied to detenu and the detenu has been afforded sufficient opportunity to make representation which he has not done. The counsel further submits that the detention is not vitiated on that count.

3. Para 2(a) of the petition reads as under: -
"That no order of detention, grounds or the material referred to and relied upon has been furnished to the detenu as such the order is liable to be set aside."

4. There is no specific denial of the Para 1 vaguely, in grounds 2(a) under the head para - wise reply, it is stated as under: -
"Ground (a) is vehemently denied in view of above submissions."

5. The order of detention reads as under: -
"Whereas I, Abdul Hamid IAS District Magistrate Srinagar am satisfied on the basis of records received from SP Ganderbal that with a view to prevent Shri Javid Ahmad Khan S/o Shri Abdul Khaliq Khan R/o Daribal Ganderbal, from acting in any manner prejudicial for the maintenance of Security of the State it is necessary to do so."

6. A combined reading of the above paras of petition allegation, statement in the counter and the order of detention show that the detaining authority while passing the impugned order and detention, has drawn subjective satisfaction on the basis of record which has been received from SSP Ganderbal. On examination of the grounds of detention, it can be fairly seen that number of terrorist activities are attributed to the detenu in respect of which criminal cases have been registered against him and arms and ammunition is also recovered from him. He is charged not only under Indian Arms Act but also for number of murders in different cases. Obviously all these incriminatory facts are based on some record made available to the detaining authority. Notwithstanding the detaining authority has not specifically denied the allegation of non - supply of the record / material, but while examining the decisional process of detention in question and leaving the question of decision in respect of satisfaction qua the detention to the detaining authority, as is to be done a requirement of law, the conclusion is irresistible that the detenu has not been supplied, material, documents, record, dossier and report referred to the detaining authority, forming the basis of his satisfaction qua the impugned order and the consequent detention. In such circumstances it cannot be said that the detenu has been communicated the order of detention as mandated by Art.22(5) of the constitution and as a statutory requirement of S.13 of P. S. Act, 1978.

7. In Sophia Gulam Mohd. Bham v. State of Maharashtra , AIR 1999 SC 3051 : 1999 CriLJ 4064, the Apex Court observed: -
". . . . .The right to be communicated the grounds of detention flows from Art.22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation can be made and the order of detention can be assailed only when all th