HCP No.27/2023 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 12.12.2024 Pronounced on: 12.02.2025 HCP No.27/2023 JAHANGIR AHMAD MALIK ...Petitioner(s) Through: - Mr. G. N. Shaheen, Advocate, with Mr. Asif Nabi, Advocate. Vs. UT OF J&K & ORS …Respondent(s) Through: -Mr. Mubashir Majid Malik, Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. JUDGMENT 1) Through the medium of present petition, the petitioner has assailed detention order bearing No.169/DMS/PSA/2023 dated 17.07.2023, issued by District Magistrate, Shopian (for brevity "detaining authority"). In terms of the aforesaid order, Jahangir Ahmad Malik son of Abdul Rahim Malik resident of Pehlipora Pinjoora Tehsil Shopian District Shopian (for short "detenue") has been placed under preventive detention and lodged in District Jail, Baramulla. 2) The petitioner has contended that the allegations mentioned in the grounds of detention have no nexus with the detenue and that the grounds of detention are vague, non-existent, on the basis of which no prudent man can make an effective representation. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material that formed basis of the impugned detention order has not been supplied to the petitioner. It has HCP No.27/2023 been also contended that the representation submitted by the petitioner against his detention has not been considered, as no result of consideration thereof has been conveyed to the petitioner. 3) The respondents have resisted the petition by filing their reply affidavit, wherein they have contended that the activities of the detenue are highly prejudicial to the security of the UT/Country. 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 has been further 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 also averred 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 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 following grounds: (i) That representation of the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights. (ii) That the detenue has not been provided the whole of the material, which prevented him from making an effective representation against his detention. HCP No.27/2023 6) The first ground projected by learned counsel for the petitioner is that the that representation of the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights. 7) In the above context, the petitioner has placed on record a copy of the representation dated 07.08.2023 along with his writ petition (Annexure-IV). He has also placed on record postal receipts dated 09.08.2023, which indicates that the representation has been sent to the Principal Secretary to Government, Home Department and District Magistrate, Shopian. 8) The record produced by the respondents reveals that the representation of the petitioner had been placed before the Advisory Board but the same has been rejected on 21.02.2023. Thus, it is an admitted fact that the respondents had received the representation of the petitioner against the impugned order of detention but result thereof has not been conveyed to the petitioner. The respondents have not placed on record anything to show that the order of rejection of representation was conveyed to the petitioner. It is not coming forth from the record produced by the respondents as to whether the result of the representation has been conveyed to the petitioner. The Supreme Court in Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98, while dealing with the effect of failure to communicate the result of the representation has held that failure in timely communication of the rejection of the representation is a relevant factor for determining HCP No.27/2023 the delay that the detenue is protected under Article 22(5). It has been further held that failure of the government to communicate rejection of detenue’s representation in a time bound manner is sufficient to vitiate the detention order. 9) So far as the next ground of challenge is concerned, a perusal of the material on record reveals that the petitioner has received only grounds of detention consisting of five leaves. That means, copies of PSA warrant, notice of detention and order of detention have not been provided to the petitioner. Even the copy of the dossier of detention has not been supplied to the petitioner. Thus, the 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. 10) 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. HCP No.27/2023 While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184). 11) Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from preventive custody forthwith provided he is not required not required in connection with any other case. 12) The detention record be returned to the learned counsel for the respondents. (Sanjay Dhar) Judge SRINAGAR 12.02.2025 "Bhat Altaf-Secy" Whether the order is speaking: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 12.02.2025 16:03