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'Procedural Requirements Are The Only Safeguards Available To A Detenue': J&K High Court While Quashing Detention Order

Shrutika Pandey
21 July 2021 8:42 AM GMT
Procedural Requirements Are The Only Safeguards Available To A Detenue: J&K High Court While Quashing Detention Order
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Setting free a detenu from preventive custody, the Jammu and Kashmir High Court has held that the procedural requirements are the only safeguards available to the detenue and therefore, they must be strictly complied with.

Justice Rajnesh Oswal made it clear that the Court cannot go behind the subjective satisfaction of the detaining authority and thus, procedural requirements are to followed scrupulously, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.

The Petitioner in this case had challenged the order of preventive detention which was passed against him while he was in custody in connection to alleged commission of offences under the NDPS Act.

Advocate M. Ashraf Wani, appearing for the Petitioner, challenged the detention order on three counts: (i) vague allegations; (ii) delay in execution of detention order, and (iii) petitioner could not have been granted bail due to nature of allegations under the NDPS, as such, the order of detention is bad in law.

On the other hand, the respondents, represented by Additional Advocate General Mir Suhai, argued that all procedural and statutory safeguards enshrined under Article 22(5) of the Constitution of India and Section 13 of the Act had been complied with while passing the detention order. They claimed to have supplied all the requisite documents to the petitioner to enable him to make a representation before the detaining authority and the Government. It was further stated that the contents of the detention order/warrant and the grounds of detention were read over and explained to the petitioner in the language he fully understood.

The High Court perused the grounds of detention, noting that the order of detention has been passed on the ground of the involvement of the petitioner for the commission of offences under various provisions of the erstwhile J&K Ranbir Penal Code Sections along with Sections 8, 21 and 29 of the NDPS Act. It further noted that the detaining authority, while passing the detention order, had relied upon several FIRs registered against the petitioner. However, none of the FIR had been furnished to the petitioner.

It thus concluded that the petitioner has been deprived of his right to make an effective representation against his preventive detention to the detaining authority, as also to the Government. The Court remarked,

"It is only after the petitioner is supplied all the material that he can make an effective representation to the Detaining Authority and also to the Government, and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of Respondent No. 2 to supply the material relied upon by him, while passing the detention order renders it illegal."

The Court placed reliance on the Supreme Court's decision in Thahira Haris v. Govt. of Karnataka (2009), where it has been held,

"Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon on the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention."

The Court also noted that the petitioner was involved in carrying a commercial quantity of the contraband, so the petitioner could never have been granted bail under the framework NDPS Act in the ordinary course. Accordingly, setting aside the detention order, it observed that the satisfaction recorded by the detaining authority is without any basis.

Title: Wasim Ahmad Trag v. Union Territory of J&K and Ors.

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