0

If relevant material is not supplied to the detenu, the right of the detenu to file a representation is impinged upon and the detention order is vitiated: High court of J&K and Ladakh

The only 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 as held by the Hon’ble high Court of J&K 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]

Learned counsel for detenu 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 was passed on mere ipsidixit of detaining authority, therefore, the detention order is bad in law. Learned counsel for petitioner in order to strengthen 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 court after a perusal of the facts on record and hearing the counsel opined 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 referring to on such judgment of the Supreme Court in Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, the Apex Court, relying on its earlier judgments in 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 HIGH Court stated that “In Khudiramcase, the Apex Court has explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5). In Smt. Icchu Devi Case , the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.”

Click here to read the Judgment

Judgment Reviewed by – Aryan Bajaj

Leave a Reply

Your email address will not be published. Required fields are marked *

Open chat