Hasnain Massodi, Judge

1. Challenge to order No. DMB/PSA/2010/184 dated 17.03.2011, of District Magistrate, Baramulla respondent No. 2 herein, whereby one Shri Feroze Ahmad Wandroo son of Gh Qadir Wandroo resident of Baba Yousf Sopore Tehsil Sopore District Baramulla (herein after referred to as detenue) has been placed under preventive detention must succeed for following reasons:

The respondent No. 2 has intriguingly mentioned that on the basis of grounds of detention placed before me, the detenue is placed under preventive detention to prevent him from acting in any manner prejudicial to the security of the State. The Detaining Authority may get inputs from different agencies including Superintendent of Police of the concerned District. Responsibility to formulate grounds of detention, however, rests with the Detaining Authority. It is Detaining Authority, who has to go through the reports and other inputs received by him from concerned police and other agencies and on such perusal arrive at a subjective satisfaction that the subject is to be placed under preventive detention. It is thus for the Detaining Authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of preventive detention. The detention order, for the said reasons, exhibits total non-application of mind by the detaining authority. The detention order is liable to be quashed on this ground alone.

2. The grounds of detention make reference to case - FIR No. 537/2010 u/s 307, 109 RPC, 4/5 EXP Act and FIR No. 41/2011 u/s 307, 109 RPC, 7/27 A. Act at Police Station Sopore, to have been registered against the detenue. The involvement of detenue in the aforementioned cases appears to have heavily weighed with the detaining authority while making detention order. The detention record reveals that none of the documents referred to in the detention order was ever supplied to detenue. The endorsement on the reverse of the detention order made by the Executing Officer ASI Ali Mohd No. 106/BD of P/S Sopore, at the time of execution of detention order does not make a reference to the documents in question and does not record that such documents were supplied to detenue at the time of execution of detention order or immediately thereafter. The detention record as also counter affidavit do not indicate that copies of aforementioned First Information Reports, statements recorded u/s 161 Cr.P.C. and other material collected in connection with investigation of aforesaid cases, were ever supplied to detenue. It is pertinent to point out that the detaining authority, in grounds of detention after detailing background in which aforesaid cases were registered against detenue, proceeds to opine. It is manifest from factual position as at pre-paras that your activities are highly prejudicial to the security of the State. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. The respondents, in their counter affidavit, have not controverted the plea that the said material was not furnished to 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 and Section 13 of Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the detention order is based, is supplied to the detenue. It is only after the detenue has all said material available, that the detenue can make an effort to convince Detaining Authority and thereafter Government, that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied material, on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. The failure on the part of Detaining Authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable. While holding so, I draw support from Dhananjoy Das Vs. District Magistrate, Darrang and Another, ; Sophia Gulam Mohd. Bham Vs. State of Maharashtra and Others, ; Union of India (UOI) Vs. Ranu Bhandari, ; Syed Aasiya Indrabi versus State of Jammu and Kashmir and Others (S.L.J. 2009 (I) 219); and Thahira Haris etc. Vs. Government of Karnataka and Others, .

3. Article 22(5) of Constitution provides a precious and valuable right to a person detained under preventive detention law - J&K Public Safety Act 1978, to make a representation against his detention. It needs no emphasis that a detenue, on whom preventive detention order is slapped, is held in custody without a formal charge and a trial. The detenue is held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order or security of the State. Article 22(5), Constitution of India and Section 13 of the Act, thus make it obligatory for the detaining authority to provide the detenue an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable detenue to convince Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and Statutory right available to detenue meaningful, it is necessary that detenue be informed with all possible clarity what is/are apprehended activity/ies that persuaded Detaining Authority to make detention order. In case grounds of detention are vague, ambiguous and confusing, the detenue cannot be expected to make a representation against his detention.

4. In the instant case the detenue is alleged to have provided every logistic support as also information regarding movement of police/security forces to the militants. The militants, to whom the logistic support as also information regarding movement of police/ security forces was being allegedly provided/transmitted by the detenue, are not identified nor their identity disclosed. The detenue is also alleged to have helped/guided the militants, who were involved in lobbing grenade upon security forces, to flee away from the spot. It was incumbent upon the detaining authority to give adequate information regarding the identity of militants, to whom the detenue was alleged to have helped/guided to flee away from the spot after lobbing grenade on security forces. The detenue only after getting the said information would have been in a position to explain his stand and make an effort to convince the competent authority that his preventive detention was unwarranted. These are only few instances to illustrate that the grounds of detention are vague and ambiguous and bound to keep the detenue guessing about what really was intended to be conveyed by the detaining authority. It is well settled law that even where one of the grounds relied upon by the Detaining Authority to order detention is vague and ambiguous, Constitutional and Statutory right of the detenue to make a representation against his detention are taken to have been violated. Reference in this regard may be made to Dr. Ram Krishan versus The State of Delhi and others, AIR, 1953,; Chaju Ram Vs. The State of Jammu and Kashmir, ; Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, ; and Syed Aasiya Indrabi versus State of J&K and others, 2009 (I) SLJ 2009 219.

5. Viewed thus, the petition is allowed and detention order No. DMB/ PSA/2010/184 dated 17.03.2011, passed by the District Magistrate, Baramulla respondent No. 2, directing detention of Shri Feroze Ahmad Wandroo son of Gh Qadir Wandroo resident of Baba Yousf Sopore Tehsil Sopore District Baramulla, quashed.

6. The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DMB/ PSA/2010/184 dated 17.03.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order No. DMB/PSA/2010/184 dated 17.03.2011.

7. Detention record be returned to the counsel for respondents.

8. Disposed of.