Failure on part of detaining authority to supply material renders detention order illegal

Jammu and Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed the petition which challenged the order of the district judge of preventive custody.

The detenue was arrested from his home for the commission of offences punishable under Section 121-A RPC, 7/25 Arms Act and 13 ULA (P) Act and while in custody impugned order of detention was issued.

The contention of the petitioners forwarded by Mr Mir Shafaqat Hussain was that the Grounds of detention stated were vague, non-existent and unfounded. Thus the respondents were stated to have violated the procedural safeguards as provided under Article 22(5) of the Constitution of India and to have ignored to provide material relied upon by the detaining authority.

The contention of the respondents was that activities of detenue were highly prejudicial to the security of the State and also that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him.

The Court considering the fact that the respondents did not bring anything on record to indicate that the copy of the FIR, statements recorded under Section 161 CrPC and other material collected in connection with investigation of the case were ever supplied to the detenue, held 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.

The petition was thus allowed. [Abdul Rashid Magloo v. State of J&K, 2018 SCC OnLine J&K 983, decided on 18-12-2018]

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