Full Judgment
J.P. Singh, J.
1. Detention order No. 09/2005 dated 06-12-2005 of District Magistrate, Rajouri, directs the detention of Jan Mohd., petitioner, in preventive custody under the Jammu & Kashmir Public Safety Act.
2. Jan Mohd has approached this Court through the medium of HC(W) No. 03/2006, seeking quashing of the detention order. It is stated in the petition that Jan Mohd. stood already arrested in F.I.R. No: 82/05 registered under Sections 307/120B/121/122/123/124-A/212/216/336 R.P.C. and Sections 7/27 of Indian Arms Act besides Section 03 SSA, because of which there was no scope for the detenue to be enlarged on bail and in these circumstances his preventive detention was wholly unwarranted besides being unsustainable in the eyes of law. The detention order has been questioned as arbitrary.
3. The detenue urges that he had made representation before the competent authority but it had not been decided by the State Government, thereby depriving him of his fundamental right under Article 22(5) of the Constitution of India. The detenue further urges that the material relied upon by the District Magistrate Rajouri i.e. copy of FIR No: 82/05 and Dossiers of the Senior Superintendent of Police, Rajouri, had not been supplied to him, thereby depriving him of his right to make effective representation against his detention which omission would render his detention illegal.
4. The respondents have filed counter affidavits of the District Magistrate Rajouri and the Senior Superintendent, Central Jail, Kot Bhalwal, Jammu, opposing the quashing of the detention order.
5. Sh. Arshad Majid Malik, learned Counsel appearing for the detenue, submits that the petitioner has been deprived of his right to make an effective representation because of the non supply of the requisite material to him, which material had been used by the District Magistrate in directing his detention. He further submits that the District Magistrate Rajouri has passed a mechanical order and that the order is not supported by any material on records.
6. Shri B. S. Salathia, learned AAG appearing for the State, supports the detention order, urging that the detenue is an over ground worker of LET terrorist outfit and is closely associated with LET organization, whose main aim is to create disturbance/disruptive activities and spread separatists feelings in the minds of the people of the State. Sh. Salathia submits that the detenue has been detained so that he does not act in any manner prejudicial to the security of the State.
7. I have considered the submissions of learned Counsel for the parties and gone through the records made available by Sh. Salathia.
8. Perusal of the Counter Affidavit filed by the District Magistrate, Rajouri and Senior Superintendent, Central Jail, Kot Bhalwal, Jammu shows that neither the dossiers nor copy of the FIR relied upon in the grounds of detention, appears to have been supplied to the detenue. This obviously disables the detenue from making an effective representation against his detention to the State Government. Effective representation against a detention order can be made only if all the material, which was before the District Magistrate, on the basis whereof the detention order had been issued by him, was supplied to the detenue. Non-supplying of even part of the material to the detenue would, in my opinion, cause prejudice to the detenue in making an effective representation.
9. This petition should have, therefore, succeeded on this short ground raised by the petitioner and substantiated on the basis of material placed on records by the respondents.
10. During the course of scrutiny of records of the respondents, it was discovered that SSP, Rajouri, had not made any such statement in his dossiers that the detenue was likely to indulge in activities prejudicial to the security of the State, in the event of his release on bail or otherwise.
11. I could not find any material having been supplied to the District Magistrate, on the basis whereof he could have recorded such a finding that 'in the event of your release on bail or otherwise, it is apprehended that you will again indulge in such activities and it will become rather impossible to deter you from indulging in such activities.'
12. There being no material on records of the District Magistrate to record the aforesaid finding constrains me to hold that the satisfaction recorded by the learned District Magistrate, Rajouri, that in the event of release of the detenue on bail or otherwise, he was likely to indulge in such activities, was unfounded and on the basis of such finding the petitioner detenue, who was already in custody in case F. I. R. No. 82/2005, could not have been detained in preventive custody because in case of any detenue who is already in custody, some material was required to be there before the District Magistrate to come to the conclusion that the detenue was likely to be released on bail and that while on bail he was again likely to indulge in such activities which would be prejudicial to the security of the State.
13. For all what has been said above, I do not find any material on records to support detention order No. 09/2005 dated 6.12-2005, issued by the District Magistrate, Rajouri, for the detention of the petitioner.
14. While allowing this petition, I would, therefore, quash detention order No. 09/2005 dated 6.12.2005, issued by the District Magistrate, Rajouri and direct release of the detenue/petitioner from preventive custody. The release of the detenue from preventive custody would not, however, come in the way of respondents to keep the petitioner in custody, if it was, otherwise warranted under law or was pursuant to the orders of the competent Court.