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When Detaining Authority has failed to explain the grounds to detenu in the language which he understands, it constitutes an infraction of a valuable constitutional right: High Court of J&K and Ladakh

Since the Detaining Authority has failed to explain the grounds to detenu in the language which he understands and not mentioning in the detention order about his right to make representation constitute an infraction of a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir P.S Act, 1978, which renders the detention order as invalid and deserves to be quashed as held by the Hon’ble High Court in the case of Tawheed Ahmad Lone Vs State of J&K and Anr. [WP (Crl) 178/2020].

Briefly stated the case of the petitioner is that the detenu was arrested in the month of July 2019 by Police component and implicated in a case FIR 114/2019 u/s 18, 39 ULA (P) Act 7/25 A. Act. Police station Dangiwacha. However, whether the detenu filed the bail in the said FIR before the competent court of Jurisdiction is not mentioned by the competent authority while passing the detention order.

The challenge to the impugned order was made on the grounds that, the allegations against the detenu have no nexus with the detenu and have been fabricated by the police to justify the illegal action of detaining him in preventive custody; the grounds of detention are vague, non-existent and the impugned order, being based on such vague, non-existent grounds, deserves to be quashed; the detenu is innocent and has not committed any offence of whatsoever nature.

In his counter affidavit, respondent no.2 had stated that the detenu’s activities being prejudicial to the security of the State, his detention was necessary to prevent him from indulging in such acts, which was also approved by the Government and the State Advisory Board constituted u/s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit had contended that in circumstances of the case the impugned detention is well founded in fact and law. But despite the directions, detention record not produced.

The Hon’ble court after hearing the both sides observed that the contention raised by learned counsel for the petitioner-detenu with reference to the detaining authority having not mentioning in the order about whether petitioner-detenu has made any bail application, this fact has not mentioned either in the grounds of detention or in the impugned order. Learned counsel for the Petitioner has vehemently contended that the detenu was in police custody and there was no chance of his being released on bail.

In conclusion, the Hon’ble High Court, while relying on the Judgment of LallubhaiJogibhai Patel v. Union of India, stated that “Since the Detaining Authority has failed to explain the grounds to detenu in the language which he understands and not mentioning in the detention order about the his right to make representation constitute an infraction of a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir P.S Act, 1978, which renders the detention order as invalid and deserves to be quashed.”

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Judgment Reviewed by – Aryan  Bajaj

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