Non-supply of relied-upon detention material violates Article 22(5) and vitiates preventive detention.

The petitioner challenged Detention Order No. 12-DMK/PSA of 2025 dated 30 April 2025, passed by the District Magistrate, Kupwara under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, directing his preventive detention to prevent acts prejudicial to the security of the Union Territory of Jammu & Kashmir.

The grounds of detention referred to the petitioner’s involvement in FIR No. 75/2018 under Sections 307 RPC, 7/27 IA Act and Sections 19 and 29 of the Unlawful Activities (Prevention) Act, as well as his alleged association with the banned terrorist organisation Hizb-ul-Mujahideen and alleged recent prejudicial activities.

The petitioner contended that although the police communication dated 27 April 2025 was supplied to him, the communication dated 29 April 2025, which was relied upon in the grounds of detention, was not supplied.

He further challenged the lack of particulars concerning his alleged recent activities and asserted that the handling of his representation did not afford him a meaningful opportunity to challenge the detention.

The respondents maintained that the detention order was based on the Detaining Authority’s subjective satisfaction and that the relevant documents had been supplied.

Whether non-supply of the police communication dated 29 April 2025, which was relied upon by the Detaining Authority, violated the petitioner’s constitutional right under Article 22(5) of the Constitution to make an effective representation against his detention?

Whether the grounds of detention disclosed sufficient and specific particulars of the petitioner’s alleged recent prejudicial activities and established a live and proximate link between those activities, the earlier FIR of 2018, and the need for preventive detention?

Whether the detention order passed under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 could be sustained despite the alleged procedural deficiencies?

The Court applied Article 22(5) of the Constitution, which requires that a detenue be furnished the grounds of detention and afforded the earliest opportunity to make an effective representation.

It held that documents relied upon by the Detaining Authority and having a bearing on its subjective satisfaction must be supplied to the detenue; non-supply of such material impairs the constitutional right to make an effective representation.

The Court relied on Jaseela Shaji v. Union of India, 2024 INSC 683, which distinguishes between documents merely referred to incidentally and documents actually relied upon for detention, holding that non-supply of the latter violates Article 22(5).

The Court further applied the principle that preventive detention is an exceptional measure and that past conduct must retain continuing relevance through a live and proximate link with the apprehended future prejudicial conduct; an old criminal case, without more, cannot automatically justify preventive detention.

Although the Court does not ordinarily review the sufficiency of material underlying subjective satisfaction as an appellate court, it may intervene where constitutional and statutory safeguards have not been followed.

The Court found that the communication dated 29 April 2025 was specifically relied upon in the grounds of detention but had not been supplied to the petitioner.

Since the communication formed part of the material considered by the Detaining Authority, its non-supply deprived the petitioner of the ability to examine and controvert the allegations underlying the detention, thereby violating Article 22(5); the petitioner was not required to establish any additional or independent prejudice.

The Court also found that the grounds referred to the 2018 FIR and made general assertions about recent activities without identifying those activities with sufficient clarity or explaining their connection to a continuing threat to the security of the Union Territory.

The petitioner’s ability to submit a representation did not cure the defect, because the representation was made without access to the complete relied-upon material.

In view of these procedural and substantive deficiencies, the Court held that the detention order could not be sustained, notwithstanding the gravity of the stated security concerns.

The respondents were directed to release the petitioner forthwith, unless his custody was required in connection with any other case or lawful proceedings.