Non-supply of essential materials relied upon for preventive detention and the failure to consider a representation filed by the detenue violate the constitutional safeguards under Article 22(5) of the Constitution of India, rendering the detention order illegal and unsustainable.

Whether the operative part or full judgment is pronounced: Full

JUDGMENT

1) By the medium of instant petition, the petitioner has challenged the legality and veracity of the order No.185/DMS/PSA/2024 dated 04.04.2024, issued by District Magistrate, Shopian, in terms whereof, Fazil Bin Rashid (the detenue), has been placed under preventive so as to prevent him from acting in any manner prejudicial to security of the UT/Country.

2) The petitioner has contended that the detaining authority has passed 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 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. It has also been contended that the grounds of detention are non-existent and stale and that the representation filed by the petitioner against his detention has not been considered by the respondents.

3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have contended that the activities of detenue are highly prejudicial to security of the State. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It is contended that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. It has been 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 statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have placed reliance on various judgments of the Supreme Court. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

4) 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 was not furnished the whole of the material to enable him to make an effective representation against his detention.

(II) That the representation submitted against the detention by the detenue through his brother before the respondents yet the same has not been considered thereby rendering the detention order unsustainable in law.

5) So far as the first ground of challenge is concerned, a perusal of the material on record would show that the petitioner has received total six leaves which includes PSA warrant (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves) and copy of FIR No.22/2022 of P/S Zainapora Srinagar (01 leaf) and in token whereof, his signatures have been obtained on t