ORDER
Syed Bashir-Ud-Din, J.
1. The detenue, Bashir Ahmad Bhat, through his father has challenged his detention Under Section 8 of the J. and K. Public Safety Act, 1978 ordered by District Magistrate, Srinagar-Respondent No. 2, for a period of 12 months with a view to prevent the detenue from acting in any manner prejudicial to the security of the State vide his Order No. DMS/PSA/19 dated 10-5-99. The detention is challenged on number of grounds.
2. Counter has been filed by District Magistrate Srinagar-Respondent No. 2 on behalf of Respondents and the same is available on record.
3. The counsel for petitioner submits that the only ground taken to challenge the detention in question is failure of State Government to supply the material/documents referred to and forming basis of the grounds of detention. He further canvasses that this ground he has taken in para 8 of the petition specifically. He has not been also supplied the grounds in the legal sense in so far as failure to supply the material, the basis of the grounds of detention, has prejudiced petitioner to make a meaningful and effective representation against his detention to the Government/Competent authority.
4. The Government Advocate, counters this submission by soliciting that the grounds of detention have been supplied to the detenue and ground itself is the material which should be treated as basis for the grounds. Therefore, the detenue is not prejudiced and the petition merits to be dismissed. Para 8 of the petition reads as under: —
That the detenue has neither been served with the order of detention nor the material referred to in the grounds of detention. Non supply of the material referred to in the grounds of detention along with the detention grounds to the detenue has prevented him from making an effective representation against his detention. Consequently, the detention of the detenue has been rendered void and illegal.
The para 10 of the petition reads as under: —
That the detention grounds state that the detenue has been arrested in FIR No. 21/99 Under Section 7/25 I.A. Act of Police Station Rainawari Srinagar. It was incumbent upon the detaining authority to furnish the copy of the said FIR along with the grounds of detention to the detenue. Non supply of copy of FIR and other material referred to in the detention ground to the detenue renders the detention of the detenue illegal, void and unconstitutional.
5. To counter the petitioner’s allegations the respondents in para 3 of the counter have replied as under : —
3. That the grounds of detention are adopted for the disposal of this counter-affidavit so as to avoid repetition. The grounds form the basis for detention of the detenue. No other recorded or material has been relied. Although FIR has a passing reference in grounds but same has also not been relied. Material/documents in the shape of grounds of detention stand supplied to the detenue. The grounds of detention are true, correct, unambiguous, definite, relevant and existant,
6. It would be seen that when the respondents are saying that the grounds of detention should be treated as material/ documents on which the detention is based and once the grounds have been supplied to the detenue, the legal requirement of supply of material/documents is fulfilled, is fallacious as from the grounds itself it will be seen that the grounds are based on some dossier and police report. Neither the dossier nor the police report forming the basis of the grounds of detention, has been supplied to the detenue. If arrest of the detenue in connection with the regular FIR and recovery of arms and ammunition and his being booked in regular case referred to in the ground of detention, is excluded from consideration, with dossier and police report, as suggested by the Govt. Advocate, them obviously the grounds are truncated so far and to the extent that no grounds at all survive for detention. Admittedly, no material/documents, whatsoever, the basis of detention as referred in the grounds have been at all supplied to the respondents.
7. In Sophia Gulam Mohd. Bham v. State of Maharashtra, AIR 1999 SC 3051 : (1999 Cri LJ 4064), a detention case dealt with under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974), the learned Judge observed (Para 14) : —
…The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue 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 deteriue and the material on which those grounds are based are also disclosed and copies thereto are supplied to the person detained, in his own language. …
Then again in Naseer Ahmed Sheikh v. Addl. Chief Secretary Home, 1999 Srinagar LJ 241 (J&K) a Division Bench 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, muchless 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 detenue so as to enable him to make an effective representation against the order.
8. Obviously, once the material/documents on which the grounds are based is not supplied/disclosed to the detenue, the detenue cannot be said to have been communicated the grounds under Article 22(5) of the Constitution. Obviously, the detenue is prejudicially effected, thereby he is denied right of representation guaranteed by Article 22(5) of the Constitution and as also the provisions of Jammu and Kashmir Public Safety Act.
9. In result, the detention order is invalid and is therefore, quashed. Respondent/Competent authority or officer having custody of corpus of the detenue shall set him liberty and release him forthwith, provided the defenue Bashir Ahmad Bhat S/o Ghulam Nabi Bhat R/o Gauripora Khushki Rairiawari, Srinagar is not required in any other substantive offence or case including FIR 21/99 registered at Police Station Rainawari, Srinagar.
10. Communicate the order to concerned and supply copy free of cost to the petitioner.