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Mandate of Article 22(5) of Indian Constitution requires that the grounds of detention must be communicated to the detenu: High Court of J&K and Ladakh

In view of the various laws laid down by the Apex Court vitiates the detention order, as not amounting to effect communication of grounds, and resultant deprivation of the right to make representation against the same as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Hon’ble Mr. Justice Ali Mohammad Magrey in the case of Mohammad Asif Raina Vs Union Territory of J&K and ors [Case no. ([WP Cri) No. 33/2020].

Petition arised when the detenu, Mohd Asif Raina seeked quashment of detention order no. 32/DMK/PSA/2019 dated 22.07.2019 purporting to have been passed by District Magistrate, Kulgam, with consequent prayer for release of the detenu forthwith.

Learned counsel for detenu had submitted that the grounds taken in the detention order and the material referred to and relied upon had no relevance because the detenu was already in custody, therefore, there was no possibility that the detenu could be implicated in the activities prejudicial to the public security of the state. It was submitted that in absence of material the detention order was passed on mere ipsi dixit of detaining authority, therefore, the detention order is bad in law. Learned counsel for petitioner in order to strengthening his submission referred to and relied upon (2006) 2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr.

The Hon’ble court, after a perusal of the record and order passed by District Magistrate, Kulgam, was of view that The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated.

While relying on the Judgments of Apex Court in the cases of In Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, Khudiram Das v State of W. B., (1975) 2 SCR 81; Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531, the Hon’ble Court in conclusion stated that “So far as the ground taken i.e non communication of the grounds of detention is concerned, perusal of file reveals, that there is nothing to show or suggest that the grounds of detention couched in English language were explained to the detenu in a language understood by him, as there is no material to that effect on record. This according to the view taken by Hon’ble Apex Court in “LallubhaiJogibhai Patel v. Union of India, (1981) 2 SCC 427”; the detenu did not know English, while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that while serving the grounds of detention were fully explained to the detenu, but the Apex Court held that, was not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu.”

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Judgment Reviewed by – Aryan Bajaj

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