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Detention order to be quashed if the detaining authority has also failed to express any such compelling reason in Reply Affidavit. : Srinagar High Court

Detention goes against the fundamental rights guaranteed by the constitution, it is only warranted and justified if it is supported by strong reasons after having followed the procedural requirements. This was held in the judgment passed by a single bench judge Hon’ble Mr. Justice Javed Iqbal Wani, Judge, in the matter Salman Ahmad Dar V. State of Jammu and Kashmirand others (CrlM No. 775/2019), dealt with an issue where the petitioner filed quashment of detention order passed against the detenu, namely,Salman Ahmad Dar,is being sought for by the petitioner as also a writ of mandamus for his release.

The detenu is stated to have been arrested in the month of August 2019, after being summoned to Police Station Shopian, and was implicated falsely in case FIR No. 123/2019registered at Police Station Shopian and while being in custody therein the said FIR came to be detained under preventive custody by the respondents in terms of impugned order and lodged at Central Jail, Srinagar. The impugned order is being challenged, inter alia, on the grounds that detenu was already in custody in connection with case FIR No.123/2019 and the detaining authority, despite having the knowledge of the said fact, detained the detenu without spelling out any compelling reason thereof in the grounds of detention, moreso, when there was no possibility of the release of the detenu from the custody on account of offences of the FIR.

 It is being further urged in the grounds that the detenu had not been provided copies of the relevant material, like copy of dossier, copy of FIR, Statements under Section 161, 164-A Cr. PC, referred to in the groundsof detention, thus, depriving him to file an effective representation against his detention. The said failure is stated to have infringed the constitutional right of the detenu guaranteed under Article 22 (5) of the Constitution of India.

The respondents stated in their reply affidavit filed in opposition to the petition, resist and controvert the contentions raised and grounds urged by the petitioner in the petition and have insisted that the order of detention is preventive and not punitive in nature, while it is being admitted by respondents that detenu was detained pursuant to impugned order. It is being stated that all statutory requirements and constitutional guarantees have had been fulfilled and complied with while detaining the detenu.

After hearing both the parties, the Hon’ble Srinagar High court allowed the petition as The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, has made it clear that it is only the procedural requirements, which are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present case, procedural requirements, as discussed above, have not been followed and complied with by respondents in letter and spirit and as a consequence thereof, petition on hand requires to be allowed.

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