High Court of Jammu & Kashmir and Ladakh · 2022

against such allegation and passing of detention on such grounds is unjustified and unreasonable; 3/- Pursuant to notice, respondents appeared through their learned counsel and filed the counter affidavit stating therein that the detention order is well founded, in fact and law, and seek dismissal of the Habeas Corpus Petition. 4/- Heard learned counsel for the parties and perused the records. 5/- Learned counsel for petitioner submitted that there was no material before the detaining authority to pass the detention of the detenue and in absence of relevant material the detention order is passed on mere ipsi dixit of detaining authority, rendering the same as bad in law. 6/- The learned counsel for petitioner further submitted that the detenue has not been provided the material referred upon in the grounds of detention resultantly the right of making effective representation against the impugned order of detention, as enshrined under Article 22 (5) of the Constitution, has been violated.

7/- Ms. Insha Rashid, learned Government Advocate, on the other hand, submitted that the impugned order of detention is well founded and legally quite sound. He submitted that the detenue has been provided the material relied upon by the detaining authority while issuing the impugned detention order. 8/- She further submitted that the detenue has also been informed about his right of making representation against his detention. He submitted that the detaining authority has fully applied its mind while issuing the detention order and there is nothing on record to controvert it. In support of his submissions learned counsel for respondents referred to and relied upon the law laid down in (1975) 3 SCC 198 9/- It is clear from the execution report, which forms part of the detention record, that copy of the police dossier has not at all been supplied to the detenue. Thus, contention of the learned counsel for the petitioner that entire material, relied upon by the Detaining Authority, while framing the grounds of detention, has not been supplied to the petitioner, appears to be well-founded.

Obviously, the petitioner has been deprived, 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. I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) and, ThahiraHaris Etc.