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The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention: High Court of J&K and Ladakh

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 as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Justice Ali Mohammad Magrey in the case of Mehraj ud din Ganaie Vs Govt of J&K and ors [(WP Cri) No. 21/2021].

In the case, Detenu, Mehraj ud din Ganaie through his wife Naziya seeked quashment of detention order no. DMS/PSA/15/2021 dated 22.02.2021 purporting to have been passed by District Magistrate, Srinagar, with consequent prayer for release of the detenu forthwith. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition.

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 be implicated in the activities prejudicial to the public security of the state. It was submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority, therefore, the detention order is bad in law. Learned counsel for petitioner has 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 High Court, after a perusal of the facts, was of the 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. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore.”

While concluding and quashing the detention prder, the court 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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