Subject Gulzar Ahmed Malla has been detained under Order No. F/92/DMA/PSA/DET/2001/119-24 dated 11-8-2001 and has been taken in preventive custody on 23-8-2001. This order as also detention is under challenge in this petition. Petitioners Ld. counsel has confined his challenge to the detention on the ground that the material/documents/report referred in the grounds the basis of detention has not been supplied to him, thereby vitiating the detention as he could not make any meaningful and effective representation to Government against the detention. This ground is taken in para 5(d) of the petition. The detaining authority has filed counter on his affidavit. In reply to this ground under the head captioned grounds, at para C it is stated that the detenu has been provided the relevant material sufficient for making representation against the detention order .... has been provided the basic material in order to make effective representation. As would be seen from record, what material is sufficient or basic to the detention is not specified anywhere in the para or the counter. So far as perusal of the detention file is concerned it shows that the detention is based on grounds drawn and based on dossier/report of SSP District Anantnag, the record nowhere shows that this report of the dossier was at any stage supplied to the detenu. This is more so, when grounds are examined, perusal of grounds show that besides introductory facts, subjects history of association with militants and his involvement in militancy related activities till he was arrested and recovery of arms and ammunition effected from him in FIR No. 187/2001 registered at P/S Anantnag, are pressed in service, as grounds of detention. It is only on these grounds that his likelihood of release from custody on bail is stated to make the subject again to indulge in activities prejudicial to the security of the State. The introductory facts and history of the detenu qua militancy as also the recovery of arms and ammunition and registration of the case are all integrated into one whole to form ground for detention. In absence of supply of the report/dossier giving details about the subjects involvement qua militant activities coupled with recovery of arms and ammunition and lodging of the FIR forming the basis for clamping the detention order, detenu cannot be said to be communicated the order with grounds and material.
In absence of supply of the report/dossier giving details about the subjects involvement qua militant activities coupled with recovery of arms and ammunition and lodging of the FIR forming the basis for clamping the detention order, detenu cannot be said to be communicated the order with grounds and material. In the circumstances on apprehension that detenu may indulge in activities prejudicial to the security of the State, once let off on bail, would not suffice, Admittedly no material/documents/report and recovery/seizure memo and statement recorded u/S. 161 are provided to detenu. In such circumstances, it cannot take long time to conclude that the detention order has not been communicated to detenu in legal sense. The first safeguard enshrined in article 22(5) of the Constitution communicating the grounds with basic facts of detention, is not complied with and therefore second part of disabling the detenu to make effective and meaningful representation is also denied to him. In Naseer Ahmed Sheikh v. Addl; Chief Secy. Home 1999 Srinagar LJ 242, a Division Bench of this Court, to which I was a party observed :- "The grounds of detention give out that the alleged prejudicial activities came to be attributed on the basis of the reports made available to the detaining authority by the concerned SSP, Nowhere is it pleaded, much less shown, that the copy/copies of these reports of the police on which the detaining authority based its satisfaction to pass the detention order were supplied/provided to the detenu so as to enable him to make an effective representation against the order." In Sophia Gulam Mohd. Bhan v. State of Maharashtra, AIR 1999 SC 3051 : (1999 Cri LJ 4064), the Apex Court in the context of "Communication of grounds" held :- "....... The right to be communicated the grounds of detention flow from Article 22(5) while the 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 the grounds on which the order is based are communicated to the detenu and the material on which those ground are based are also disclosed and copies thereof are supplied to the person detained, in his own language. ....." In Ghulam Mohd.
....." In Ghulam Mohd. Mir v. State of Jammu & Kashmir (H.C. Petition No. 93/99) decided on 30-12-1999 (2000 Cri LJ 3233), it is recorded :- "..... In the circumstances, the detenu cannot be said to have been provided an opportunity and the means to make meaningful and effective representation against the detention as guaranteed apart from provisions of Public Safety Act, by Article 22 of the Constitution so long the material, on which the facts or conclusions constituting the grounds and basis of subjective satisfaction of the detaining authority, is withheld from or denied to the detenu, the detenu cannot be said to be communicated the grounds with material. If so, detenu is denied opportunity to make representation." In result, for the aforesaid reasons, the impugned order of detention is found vitiated and consequently the detention is illegal. The impugned order is quashed. Respondents/detaining authority/officer having physical corpus of the detenu Gulzar Ahmed Malla S/o Abdul Razak Malla R/o Turkatachloo of Tehsil Kulgam District Anantnag is/are directed to release him from custody and set him at liberty forthwith, provided he is not required in any other case, offence or matter. Communicate this order to concerned and give copy of this order to petitioner free of cost. The record is return to Mr. Gh. Mustaffa, GA in open Court. Petition allowed.