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Failure to effectively communicate the grounds of detention and resultant deprivation of the right to make representation against the same vitiates the detention order: High Court of J&K and Ladakh

Grounds of detention being drawn up in English and an affidavit filed on behalf of the detaining authority is not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. This was upheld by Hon’ble High Court of J&K, while observing a judgment of Supreme Court in LallubhaiJogibhai Patel v. Union of India, (1981) 2 SCC 427, through a learned bench of Justice Ali Mohammad Magrey in the case of Mohammad Illiyass Sheikh Vs UT of J&K and anr [WP (Crl) No. 80/2021].

Grounds pleaded in support of petition were that respondent had issued the detention order dated on the basis of grounds placed before him by the concerned SSP, as the grounds of detention are ditto copy of the dossier. It was submitted that the detaining authority has not applied its mind while passing the detention order and that there is total non-application of mind while passing the impugned order of detention as the detenu was already under custody when the detention order was passed. It was submitted that the authority had not explained the grounds to the detenu in the language which he understands. It was submitted that no copy of translated version was furnished to the detenu to enable him to make an effective representation against the detention order, which renders the detention order liable to be set aside.

In counter affidavit, respondent no.2 had stated that the detenu’s activities being highly 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 has contended that in circumstances of the case the impugned detention is well founded in fact and law.

The Hon’ble High Court after hearing both the sides 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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