"Preventive Detention Shall Not Be Decided In Slipshod Manner":Gujarat HC Issues Guidelines For State, Detaining Authority [Read Order]

Cautioning that the matters relating to the preventive detention should not be decided in a slipshod manner, the Gujarat High Court has asserted that it is very essential to look into the order of detention including the grounds of detention and the other materials on record threadbare and with all seriousness to ensure that the personal liberty of the detenue has been curtailed strictly following the procedure prescribed by law."At times even if the Court is not getting any proper assistance from the counsel appearing in the matter on behalf of the detenue, the Court owes a duty on its own to look into the matter threadbare", said Chief Justice Vikram Nath Justice J. B. Pardiwala.The division bench further iterated that the concerned government pleader appearing for the State also as an Officer of the Court owes a duty to assist the Court in the right manner and in the right direction. "The endeavor of the concerned AGP appearing for the State should not be to defend the order of preventive detention at any cost even if he is convinced that the same is not in accordance with law", observed the bench.The bench proceeded to stipulate the following guidelines for the State Government and the Detaining Authority while initiating and dealing with the proceedings under the Laws of Preventive Detention. It required the judgment to be circulated among the Home and Revenue Departments of the state and all district magistrates.(a) The detention order in writing, soon after it is passed, should be communicated to the detenue. The detaining authority should also communicate the grounds of detention comprising of the basic facts, and the relied upon materials, in their entirety with the documents, statements, or other materials, not later than 5 days from the date of passing of the detention order.(b) If two or more grounds are relied upon by the authority, each of the grounds should be separately and distinctly mentioned in the Detention order, as each one of the grounds if valid is sufficient to validate the order even if other grounds are vitiated or invalidated for any reason except in the case of non-application of mind.(c) Every Detention order should be supplied with the translated legible version of all the scripts and documents relied upon, in the language he understands to make an effective representation.(d) The detaining authority should specifically disclose with reference to each of the grounds for detention, which are all the documents relied upon and which are the documents casually or passingly referred to in the course of narration of facts (including the bail orders) and should furnish the relied upon documents along with the detention order.If the detaining authority prefers to furnish the referred documents also, those materials also to be furnished.(e) So far as the bail applications and orders, and violation of bail conditions are concerned, if the detenue is on bail, if the bail application and bail orders, conditions therein are with reference to any vital ground or vital materials, placing of those materials though may not always be mandatory but such requirement depends upon the facts and circumstances of each case, which the detaining authority and later the Courts should very carefully examine whether the non placing of those materials in any way prejudiced the detenue. However failure to furnish any or all the referred documents shall not invalidate the order of Detention.(f) If the order of detention is challenged, the courts also shall have to independently consider each ground, to ascertain on each ground whether the order is sustainable or not with reference to the guidelines herein referred.(g) If any representation is submitted by the detenue before the Detaining Authority, addressing the same to the Detaining Authority, government, or to the Advisory Board, irrespective of the fact that, to whom it is addressed, the same should be as early as possible considered by the appropriate Government, before sending the papers to the Advisory Board. If the appropriate Government revokes the detention order and directs release of the detenue, there arises no question of sending the case papers to the Advisory Board.(h)The Government shall within three weeks from the date of the detention order, place the order before the Advisory Board along with all the materials, grounds, representation if any made by the detenue, along with any report by such officer made under subsec (3) of section 3 of the Act.(i) The Advisory Board shall maintain records disclosing the date of receipt of the detention order and other materials, including the representation of the detenue. The Advisory Board shall consider all the materials placed before it, including the representation if any of the detenue, if necessary after calling for such further information as it deems it necessary, and if the person concerned desires to be heard, after hearing him in person and then send its report to the Government within Seven...

"Preventive Detention Shall Not Be Decided In Slipshod Manner":Gujarat HC Issues Guidelines For State, Detaining Authority [Read Order]

Mehal Jain

Tags