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Detention order held unsustainable due to arbitrary use of Law Of Preventive Detention by the Detention Authority: The High Court of Jammu & Kashmir and Ladakh

Vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Musadiq Gaffar Lone v. Union Territory Of J&K & Anr. [WP(Crl.) No.184/2020] which was decided upon by the single judge bench comprising Justice Sanjay Dhar on 16th November 2021.

The facts of the case are as follows. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the ground that the constitutional and statutory procedural safeguards have not been complied with in the case of the petitioner, inasmuch as whole of the material forming basis of the grounds of detention has not been furnished to him. A perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 11.11.2020. Report of the Executing Officer in this regard forms part of the detention record, a perusal thereof reveals that it bears the signature of petitioner and according to it, copy of detention warrant (01 leaf), grounds of detention (02 leaves), copy of dossier (Nil), other related documents (Nil), in total 04 leaves, have been supplied to him. It is clear from the execution report, which forms part of the detention record, that copies of detention order and the dossier have not at all been supplied to the detenue. contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded.

The court perused the facts and arguments presented. It was of the opinion that “the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.  Viewed thus, the petition is allowed and the impugned order of detention bearing No. 37/DMP/PSA/20 dated 09.11.2020, issued by respondent No.2-District Magistrate, Pulwama, is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. The detention record be returned to the learned counsel for the respondents.”

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Judgment reviewed by Aryan Bajaj

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