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The word ‘grounds’, under Article 22(5) of the Constitution, means not only the narrations or conclusions of facts, but also all materials on which those facts or conclusions which constitute grounds are based: High Court of J&K and Ladakh

The word ‘grounds’ used in clause (5) of Article 22 of the Constitution means not only the narrations or conclusions of facts but also all materials on which those facts or conclusions which constitute grounds are based. Such material has to be supplied to the detenue so as to enable him to make an effective and meaningful representation as held by the High Court of J&K and Ladakh through Justice Sanjay Dhar in the case of Nisar Ahmad Qazi Vs UT of J&K & another[WP(Crl) No.05/2021].

Brief facts of the case are that Nisar Ahmad Qazi (the detenue) filed this petition seeking a Writ of Habeas Corpus for quashing the detention order bearing No. o4/DMP/PSA/21 dated 06.01.2021, passed by District Magistrate, Pulwama, purportedly, passed by the detaining authority in the exercise of powers conferred under Section 8 of the J&K Public Safety Act, 1978 (for short the Act of 1978).

Petitioner had contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has been further urged that the material which formed basis of the grounds of detention and the consequent order of have detention not been furnished to the detenue.

On being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein it was submitted that detention was necessitated because of involvement of the detenue in very serious offenses against the State as mentioned in the FIR registered against him. The detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It was further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority. The order had been issued validly and legally. The respondents have placed reliance on the judgment of the Supreme Court in Haradhan Saha v. State of W.B (1975) 3 SCC 198. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.

The Hon’ble High Court after hearing both the parties opined that in the cases of preventive detention, a detenue has the right under Article 22(5) of the Constitution to be furnished with particulars of the grounds of his detention. The court relied on the judgments of Ram Krishan Bhardwaj v. the State of Delhi, AIR 1953 SC 318 and Shalini Soni v. Union of India, (1980) 4 SC 544. In conclusion, while allowing the appeal, the Hon’ble High Court stated that “The detaining authority is obliged to mention in the grounds as to on which material it based his satisfaction. Failure to do so renders the detention illegal. To communicate the bare grounds of detention to the detenue will not be sufficient unless grounds are accompanied by material that the detaining authority has considered and relied upon. For this, support can be had from the judgment of this Court in the case of Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241.”

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Judgment Reviewed by – Aryan Bajaj

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