1. Challenge is to the order no. 01 DMK/PSA of 2009 dated 16/04/2009 of District Magistrate Kupwara respondent no.2 herein whereby Shri Sarfaraz Ahmad Raina son of late Ghulam Mohammad Raina resident of B-94, Mustafa-Abad, Malir City, Karachi, Pakistan (hereinafter referred to as detenue), has been placed under preventive detention and directed to be lodged in Central Jail Kotbilwal, Jammu for "a maximum period." It appears that the detenue, a foreign national, was allegedly apprehended at Surigam, Kupwara and some arms/ammunition were recovered from possession of the detenue. The arrest and recovery led to registration of case FIR no. 02/2009 U/S 2/3 E & IMCO, 7/25 Arms Act at police station Sogam. The respondent no. 2, while the detenue was in custody, in exercise of the powers under section 8 of the Public Safety Act, 1978, passed the detention order in question and ordered preventive detention of the detenue as stated above. The detention order was confirmed by the Government vide order no. Home/PB-V/1257/2009 dated 26/06/2009 and the detenue directed to be detained for a period of 24 months and lodged in Central Jail Kotbilwal, Jammu. The confirmation was made after the State Advisory Board vide its order dated 11 June 2009 approved the action of the respondent no. 2 and advised the Government to detain the detenue J&K Public Safety Act, 1 978.

2. The detention order is challenged on the grounds that the detention order is unwarranted and made in violation of Articles 21 and 22(5) of the Constitution of India. The detaining authority is alleged to have not complied with the safeguards laid down in J&K Public Safety Act, 1978 (hereinafter referred to as the). The detaining authority in particular is said to have ignored to supply to the detenue the copy of the detention order and other material relied upon while passing the detention order, within the statutory period as envisaged under Section 13 (1) of the. The grounds of the detention are assailed as vague, irrelevant, stereotype and lacking in essential details. It is insisted that as the detenue was already in custody as an under-trial, there was no compelling reason to slap detention order on the detenue. The detaining authority is said to have avoided to supply the material, a mention whereof was made in the grounds of detention. There is said to have been a gross lapse on the part of the authorities in their failure to explain and translate the grounds of detention to the detenue.

3. The respondents in their counter affidavit have denied that any legal or constitutional right of the detenue has been infringed or violated. The respondents plead that the detenue after obtaining illegal training in handling arms and ammunitions in a training camp in POK, infiltrated into Kashmir Valley via Machil forests and was apprehended at Surigam, Lolab. It is alleged that a hand grenade was recovered from the possession of the detenue and case FIR no. 02/2009 U/S 2/3E & IMCO, 7/25 Arms Act was registered at police station Sogam. The competent authority, on its own independent application of mind to the facts of the case, is said to have found it necessary to order preventive detention of the detenue and pass the order in question accordingly. It is pleaded that the detention warrant was executed on 16 April 2009 at Central Jail Kotbilwal, Jammu, i.e. during custody of the detenue and that detention order met approval of the State Advisory Board as also the state Government. The respondents denied that the material was not supplied to the detenue or that the grounds of detention were vague, uncertain or ambiguous.

Heard and considered.

4. Challenge to the detention order in question is bound to succeed for the following reasons.

1. Article 22(5) constitution of India guarantees a valuable right to a person detained under preventive detention law, to make representation against his detention. The constitutional safeguard can be effective only if the detenue is informed that the detenue has a right to make representation and further the detenue is provided all material that is gone through and relied upon by the detaining authority while making the detention order. If the material that is relied upon by the detaining authority is not made available to the detenue and the detenue not made aware of the information that weighed with the detaining authority, the detenue cannot make an effective and meaningful representation against his detention.

In the present case the detention order makes mention of material referred such as "dossier and other connecting documents" relied upon by the detaining authority while making order. The detention order also makes reference to a communication of Superintendent of Police Kupwara No. Pross/PSA/009/6755-58 dated 1st. April, 2009. The detention record reveals that none of the documents referred to in the detention order was ever supplied to the detenue. The endorsement on reverse of the detention order made by the Executing Officer at the time of execution of detention order does not make reference to the documents in question and does not certify the supply of such documents to the detenue at the time of execution of detention order or immediately thereafter. The grounds of detention make mention of case FIR 02/2009 under Section 2/3 E & IMCO, 7/25 Arms Act to have been registered at police station Sogam against the detenue. The detention order even makes mention of the arrest of the detenue in connection with aforesaid FIR. Involvement of the detenue in aforementioned case appears to have weighed with the Detaining Authority while making the detention order. The record does not indicate that copy of the aforementioned FIR or material collected during investigation of the said case was ever supplied to the detenue, to enable him to exercise 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. The Constitutional and Statutorily Safeguards are meaningless 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 such material available that the detenue can make an effort to convince the Detaining Authority and thereafter the Government that their apprehension as regards activities of the detenue are baseless and misplaced, if the detenue is not supplied the material on which the detention order is edificed, 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 the material relied upon at the time of making the detention order, renders the detention order illegal and unsustainable. It is not necessary to burden this judgment with the detailed reference to the case law on the subject. A reference to the reported cases, mentioned hereinafter, would suffice. The principle of law, finds expression in Dhannajoy Dass v. District Magistrate, AIR 1982 SC 1315 ; Sofia Ghulam Mohammad Bam v. State of Maharashtra and Others, AIR 1999 SC 3051 ; Union of India v. Ranu Bhandari, 2008 Cr. L J. 4567; Syed Aasiya Indrabi v. State of Jammu and Kashmir and Others, 2009 (I) S.LJ 219; and Tahir Haris v. State and Others, AIR 2009 Supreme Court 2184.

2. In order to make the constitutional and statutory safeguards available to a person detained under prevention detention law meaningful, it is equally necessary that the grounds of detention are free from any ambiguity. In case the grounds of detention are vague and ambiguous, the detenue would not be in a position to explain his stand. 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 security of the State or to maintenance of the public order. Article 22(5) of the Constitution and section 13 of the Act, thus make it obligatory for the Detaining Authority to provide the detenue an earliest opportunity of making a representation against his detention. The object is to enable the detenue to convince the detaining authority and the Government, as the case may be, that all apprehension regarding his activities, are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right available to the detenue meaningful, it is necessary that the detenue be informed with all possible clarity what is/are apprehended activity or activities that persuade the 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.

In the instant case the detenue is alleged to be a "Pak trained militant of HM outfit" `whose camp is headquartered at POK. The detenue is not informed with sufficient clarity the organisation with which the detenue is allegedly associated. The words/expressions like "PAK", "HM", "POK" are too vague to make the detenue aware of the exact accusation leveled against him. The detaining authority has not to work on assumptions and presumptions that whatever acronyms it is aware of, must be necessarily known to the detenue. The reference to the activities of "HM outfit" is rendered meaningless in view of non-description of the organisation with which the detenue is alleged to be associated. The detenue is alleged to have been motivated by "Qari Umar" and "Qari Numan" for joining the militant ranks and to have joined the "HM outfit" and training camp in "POK". The detenue was not provided particulars of "Qari Umar" and "Qari Noman" and the detenue thus has been prevented from explaining that the detenue had nothing to do with "Qari Umar" and "Qari Noman". Again the detenue is alleged to have infiltrated with "Hamza, Chota Saad and Ali Blooch." The grounds of detention do not give sufficient particulars of said persons, making it impossible for the detenue to make an effective representation against his detention. It was incumbent upon the detaining authority to give adequate information regarding identity of militants or their over-ground workers/sympathizers with whom the detenue was alleged to have associated to indulge in subversive activities. 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 amongst various grounds of detention is vague and ambiguous, the detention order is bound to be set aside. A reference in this regard may be made to Dr. Ram Krishan v. The State of Delhi and others, AIR 1953; Chaju Ram v. State of J&K, AIR 1971 SC 263 ; Mohd Yousuf Rather v. State of J&K, AIR 1979 SC 1925 ; and Syed Aasiya Indrabi v. State of J&K and others, 2009 (I) SLJ 2009 219.

3. The detaining authority did not inform the detenue that the detenue independent of his right to file representation against his detention, to the Government, has also right to submit a representation to the detaining authority till his detention was considered by the Government and approved. The detaining authority, respondent No. 2, has in effect violated constitutional and statutory rights of the detenue guaranteed under Article 22 (5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act. Reference in this regard may be made to the law laid down in State of Maharashtra and Others v. Santosh Shankar Acharya, AIR 2000 SC 2504 .

5. Viewed thus the petition is allowed and the detention order No. 01-DMK/PSA of 2009 dated 16/04/2009 passed by the District Magistrate Kupwara, respondent no.2, directing preventive detention of Sarfraz Ahmad Raina son of late Ghulam Mohd. Raina, resident of B-94 Mustafa-abad, Malir City, Karachi, Pakistan is quashed. Resultantly, the detenue is directed to be let off, unless of course the detenue is required in any other case(s), justifying his continued custody/ detention.