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Non-Supply Of Vital Documents To Detenue Hampers His Right To Make Representation: J&K&L High Court Quashes Preventive Detention Order

Zeb Hasan
4 May 2022 7:33 AM GMT
Non-Supply Of Vital Documents To Detenue Hampers His Right To Make Representation: J&K&L High Court Quashes Preventive Detention Order
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Jammu and Kashmir High Court recently quashed a preventive detention order declaring it to be illegal on ground that all important documents related to the matter were not provided to the detenue. Justice Sanjay Dhar observed: "Contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied...

Jammu and Kashmir High Court recently quashed a preventive detention order declaring it to be illegal on ground that all important documents related to the matter were not provided to the detenue.

Justice Sanjay Dhar observed:

"Contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record."

Petitioner had challenged a detention order passed by the District Magistrate, Srinagar.

Petitioner had contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It was further contended that the Constitutional and statutory procedural safeguards have not been complied with in the instant case.

It was urged that the allegations made against the detenue in the grounds of detention are vague and that whole of material forming the basis of the detention order has not been provided to him thereby violating his right guaranteed under the Constitution.

It was further pointed out that there has been delay in passing of the detention order, inasmuch as the police had forwarded the dossier to the District Magistrate on 10th March, 2021 but the impugned order of detention has been passed only on 09 September, 2021. However, there has been no explanation for the delay.

Moreover, it was contended that the grounds for detention have not been furnished to the detenue. Lastly, it was argued that resort to preventive detention has to be taken only in cases where there is an urgent need to detain a person so as to prevent him from indulging in activities which are prejudicial to the maintenance of public order or security of the State. However, in the instant case, the the impugned order was passed about six months after the Senior Superintendent of Police forwarded the dossier to the District Magistrate. This, it was contended, clearly shows that there was no requirement for immediate detention of the petitioner.

The respondent did not refute the factual position given by the petitioner but stated that the detention order is based on the subjective satisfaction of the detaining authority and that the same cannot be gone into by this Court in exercise of its extraordinary writ jurisdiction.

The Court after perusal of the evidence on record noted that there is no material on record to show as to whether or not copies of statements of witnesses recorded under Section 161/164 of Cr. P.C recorded during investigation of the said FIR have been furnished to the detenue.

"Besides this, it is clear from the execution report, which forms part of the detention record, that copy of the dossier has also not been supplied to the detenue. It was incumbent upon respondents to supply all the material which formed basis of the detention of the petitioner," it added.

For the reasons above mentioned, the court allowed the petition and directed his release from the preventive custody, unless, he is not required in connection with any other case.

Case Title: MOHAMMAD HANIEF BHAT Vs. UT OF J&K & ANR

Citation: 2022 LiveLaw (JKL) 26

Click Here To Read/Download Judgment


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