GH HASSAN WANI Vs. STATE

JUDGEMENT

(1.) THIS order will govern the decision of two petitions of Habeas bearing Nos.111/1987 and 118/1987. In both the cases, the detention orders impugned were quashed yesterday for the reasons, given below: - In Habeas Corups Petition No.111/1987, the detention the order No.213 of 1987 dated:8 -6 -1987 and in Habeas Corpus Petition No.118/1987, the detention order No.208 of 1987 dated:8 -6 -1987 passed by the Disirict Magistrate, Baramulla, under Section 8 of the Jammu and Kashmir Public Safety Act, have been challenged on many grounds, details whereof are given in the petitions mentioned above and need not be repeated here.

(2.) IN both the petitions mentioned above, the counter affidavits have not been filed on behalf of the respondents with the result that the factual, allegations made in the petitions remained en -rebutted.

(3.) I do not think it necessary to go into the merits of the grounds of detection challenged in the writ petitions mentioned above, as the petitions can be disposed of on a preliminary point which goes to the root of the validity of the detention orders impugned. Admittedly, the detention orders impugned must have been passed by the detaining authority on some material, which could have satisfied him subjectively about the alleged prejudicial activities of the detenues. It has not been indicated by the detaining authority as to what was that material which had satisfied him on this score, either in the order impugned or in the grounds of detention. Obviously, he could not be a witness personally to such activities of the detenues. It is the fundamental right of a detenue under Article 22(5) of the Constitution of India to make representation against the order of his detention. Such representation can be made by him effectively only if that material is provided to him, which had satisfied the detaining authority about his alleged prejudicial activities. If Such material is not provided to him, how can he make such representation effectively? In the present cases, it has not been indicated by the detaining authority anywhere as to what was the material which had satisfied him about the alleged prejudicial activities of the detenues? They have been, therefore, deprived of an apportunity of making representations against the orders of their detention which was their fundamental right guaranteed under Article 22(5) of the Constitution of India. There is nothing on the file to show as to what was the material before the detaining authority against the detenues and how was he satisfied about the prejudicial activities attributed to them. In absence of the counter affidavit, the Court has no alternative but to believe the petitioners that no such material was famished to them. They have made such allegations in their petitions that on such allegations in their petitions on affidavit which have not been controverted by the respondents in any manner whatsoever. Even, the record has not been produced by the respondents to rebut such allegations of non -supply of the material.