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Judgment
1) Challenge in this petition is to order No.47/DMA/PSA/DET/2018 dated 03.08.2018, passed by District Magistrate, Anantnag- respondent No.2
herein, whereby Asif Ahmad Shah (hereinafter referred to as the detenue), has been taken into preventive custody and lodged in District Jail, Kathua.
2) The petitioner’s case, as set out in the petition, is that the detenue was arrested in the month of July, 2018 and falsely booked in FIR
No.66/2018 of P/S Achabal. An application for grant of bail was filed on his behalf and he was admitted to interim bail but instead of releasing the
detenue, he has been detained in terms of impugned detention order. The respondents are stated to have ignored to provide material relied upon by the
detaining authority while passing the impugned order of detention and thus deprived the detenue of his Constitutional and Statutory rights. Grounds of
detention are stated to be vague, non-existent and unfounded.
3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly
prejudicial to the maintenance of public order. It is pleaded that the detention order and grounds of detention were handed over to the detenue and
same were read over and explained to him.
4) Heard, perused the records and considered. The detention order is liable to be quashed for the reasons to follow.
5) The detention order makes mention of material record, such as “dossier and other connected documents†relied upon by the detaining authority
while passing the detention order. The detention order also makes reference to a communication received from Senior Superintendent of Police,
Anantnag, vide No.Pros/Det/2018/7359-63 dated 31.07.2018â€. However, nothing has been brought on record to show that the documents referred to
in the detention order were ever supplied to the detenue. The grounds of detention make reference to case FIR No.66/2018 registered at Police
Station, Achabal, under Section 147, 148, 149, 307, 332, 336 RPC, 3 PPP(D) Act, to have been registered against the detenue. Involvement of the
detenue in aforementioned case appears to have heavily weighed with the detaining authority while passing detention order. Nothing has been brought
on record to indicate that the copies of aforementioned FIR, statements recorded under Section 161 Cr. P. C and other material collected in
connection with investigation of aforesaid case were ever supplied to the detenue. It needs no emphasis that the detenue cannot be expected to make
a meaningful exercise of his constitutional and statutory rights 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. If the detenue is not supplied the material on which detention order is based, the detenue
cannot be in a position to make an effective representation against his detention. The failure on the part of detaining authority to supply material
renders detention order illegal and unsustainable. While holding so, I am fortified by the judgments rendered in Dhananjoy Dass v. District Magistrate
(AIR 1982 SC 1315). Sophia Ghulam Mohd. Bham v. State of Maharashtra and others (AIR 1999 SC 3051) and Thahira Haris Etc. Etc. v.
Government of Karnataka & Ors. (AIR 2009 SC 2184).
6) Taking conspectus of the above discussion, the petition is allowed and detention order impugned bearing No. 47/DMA/PSA/DET/2018 dated
03.08.2018, is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with
any other case.
7) Detention records, as produced, be returned to the learned counsel for the respondents.