Detenue has a constitutional right to be informed of the grounds of his detention and to make representation against the order of detention: J&K High Court

High-Court-of-J&K
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  • Post published:December 21, 2020
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On Friday, the Division Bench of the High Court comprises of Hon’ble Mr. Justice Ali Mohammad Magrey, Judge and Hon’ble Mr. Justice Vinod Chatterji Koul, Judge, set aside the the judgment of the learned Single Judge bench and allowed the appeal.

The High Court held that the learned Single Judge has failed to consider the issues and the judgment is contrary to the well-settled principles of law.

The Court observed that the applicant has been prevented from exercising his constitutional right of making the effective representation before the detaining authority as guaranteed under Article 22 of the Constitution of India.

The Court, while setting aside the judgment of the learned Single judge, further held that the Order of detention dated 10th August 2019 issued by District Magistrate, Shopian under Section 8 of the J&K Public Safety Act, 1978 is contrary to law and is set-aside and quashed.

Facts giving rise to this appeal:

The appellant had assailed the judgment of the learned Single Judge, who had dismissed the Habeas Corpus Petition bearing WP(C) No.368/2019. The said petition was filed on behalf of the appellant through his father, namely, Mohammad Iqbal Malla seeking quashing of detention order No.42/DMS/PSA/2019 dated 10th of August, 2019, passed by the District Magistrate, Shopian in respect of his son Saboor-ul-Haq Malla under the provisions of the Jammu and Kashmir Public Safety Act, 1978.

Arguments on behalf of the appellant:

The Counsel for the appellant contended that the appellant was in police custody at the time of passing of the aforesaid detention order in connection with the FIRs registered against him and that there was no chance of his being released on bail. In this regard, Counsel draws the attention of the Court to the averments contained in para 3 of the writ petition, wherein it was specifically urged that ‘the detenue was arrested under many FIRs and the detenue did not apply for bail, neither bail was granted in any of the FIRs.’

It was also contended that in these circumstances, there was no warrant for passing the order of preventive detention.

The next contention raised by the learned counsel for the appellant is that it is a salutary and mandatory requirement under the provisions of the Public Safety Act, 1978 that copies of all material documents which have been considered and relied upon by the detaining authority in forming his opinion that the detention of a person is necessary, had to be supplied to the detenu.

The Counsel further pleaded that the detenue is additionally required to be informed of his right to make a representation to the detaining authority against the order of detention and also to the State Government and the Central Government.

Judgments relied upon by the counsel for the appellant

Amrit Lal & Ors. vs Union of India & Ors.( AIR 2000 SC 3675)

Also Read:  Non-Consideration or an Unreasonably Belated Consideration of the representation tantamount to non-compliance of Article 22(5) of the Constitution: High Court of J&K&L

The Supreme Court had held “that there must be cogent material before the Officer passing the detention order that the detenu, who stands arrested, is likely to be released on bail. It was categorically held by the Supreme Court that such a conclusion must be drawn from the available material on record and must not be the ‘ipse dixit’ of the officer passing the order of detention. It was held that ‘likelihood of detenu’s moving an application for bail is not a cogent material’. In para 6, the Supreme Court has observed that the ‘likelihood of his moving an application for bail which is different from the likelihood to be released on bail. This reasoning in our view is not sufficient compliance with the requirements as laid down. Thus, merely the possibility of the detenu

moving the bail application in a case in which he was in custody, but had not obtained the bail order, has been held to be the insufficient reason for the passing of an order of detention under preventive detention laws.

Sophia Gulam Mohd. Bham, vs. State of Maharashtra (AIR 1999 SC 3051)

The relevant paras of the judgment are;

Para 12: The detenu was thus informed that he has a right not only to make a representation to the Detaining Authority against the order of detention but also to the State Government and the Central Government.

Para 13: Now, an effective representation can be made against the order of detention only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22 (5) of the Constitution which provides as under: “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

Para 14: The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the authorities making the order of detention. These are the rights guaranteed to the person detained by this clause of Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words “as soon as may be” indicate a positive action on the part of the Detaining Authority in supplying the grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based to the detenue. The use of the words “earliest opportunity” also carries the same philosophy that there should not be any delay in affording an adequate opportunity to the detenue of making a representation against the order of detention. The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.”

Also Read:  Non-Consideration or an Unreasonably Belated Consideration of the representation tantamount to non-compliance of Article 22(5) of the Constitution: High Court of J&K&L

Judgments relied upon by the Court

Tariq Ahmad Dar v. State of J&K & Ors. (LPA No. 43/2017)

Observations and Decision of the High Court:

The Court observed that the “appellant has been deprived of his right to make a meaningful representation against his order of detention and this, by itself, is sufficient to upset the order of detention, as it admitted of no exception.”

The Court further observed that the respondents have failed to supply the dossier based whereupon the order of detention was passed.

The Court observed that the appellant has been prevented from making effective representations in accordance with the right guaranteed by the constitution under Article 22 of the Constitution of India.

The Court held that, “We find that the impugned judgment dated 9th of October, 2020 of the learned Single Judge has failed to consider the aforesaid issues and, therefore, is contrary to the well settled principles of law on the subject. The same is not sustainable in law. Accordingly, the judgment of the learned Single Judge dated 9th of October, 2020, passed in WP(Crl) No. 368/2019, is hereby set-aside and quashed. It is further held that the order of detention bearing No. 42/DMS/PSA/2019 dated 10th of August, 2019, issued by District Magistrate, Shopian, under Section 8 of the Jammu and Kashmir Public Safety Act 1978, is contrary to law and is hereby set-aside and quashed. The appellant is directed to be released forthwith, if not required in custody in connection with any other case(s).”

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