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Provision of relevant material to the detenu, is necessary to prevent the detenu from making an effective representation against his detention, as observed by the High Court of Jammu & Kashmir and Ladakh at Jammu, before the HON’BLE JUSTICE MR. TASHI RABSTAN, in the matter of Ali Hayder & Anr. vs. Union Territory of Jammu and Kashmir & Ors. [WP(Crl) No.32/2021], on 09.12.21.

The petitioner, Ali Hayder son of Abdul Aziz resident of Village Gundha Tehsil Khawas, District Rajouri had filed the present habeas corpus petition through his copusin, questioning the detention order dated 20.05.2021 enforced against him by respondent, the District Magistrate, Rajouri, under Section 8 of the Jammu & Kashmir Public Safety Act, 1978.

The Learned Counsels for the appellant, Mr. Sheikh Altaf Hussain, contended that the detenu has never committed any criminal or anti-national offence however he along with three other persons, has been implicated in a false and frivolous case registered with Police Station Budhal, Rajouri. It was argued that there was no danger to public order especially when the petitioner was already in custody for the alleged commission of offence punishable under Sections 295-A and 429 of the Indian Penal Code, 1860, wherein no bail had been granted by the competent court of law and as such, no situation arose for slapping the detention order on the detenu. was is further submitted that the material relied upon by the detaining authority, the grounds of detention and the confidential reports submitted by District Special Branch, Rajouri, were never supplied to the detenu; and that the petitioner made a representation on 31.05.2021 in absence of supply of above material, but the same had not been decided by the respondents. As the material relied upon by the detaining authority on the basis of which the detention order was passed, had not been supplied to the detenu, it was contended that the order of detention is liable to be quashed as the detenu could not make an effective representation to the respondents against his detention.

The Learned Counsel for the respondent, Mr. Bhanu Jasrotia, argued that the detenu had been detained as per the provisions under Section 8 of Jammu and Kashmir Public Safety Act, 1978 on the ground to maintain proper order, harmony and to prevent violence of any kind in the district and also to prevent the detenu from acting in any manner which is highly prejudicial to the maintenance of public order. Thus, it was contended that the petition was not maintainable.

The Honourable High Court of Jammu & Kashmir and Ladakh at Jammu, held that the failure on part of detaining authority to supply material relied at the time of making detention order against the detenu, renders detention order illegal and unsustainable. It observed that Article 22(5) of the Constitution provides a precious and valuable right to a person detained under preventive detention law, to make a representation against the detention. The detenu was held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order or security of the State.

Article 22(5), of the Constitution of India and Section 13 of the Jammu & Kashmir Public Safety Act, 1978, thus makes it obligatory for a Detaining Authority to provide detenu an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenu to convince the Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted.

To make the constitutional and statutory right available to detenu meaningful, it is necessary that detenu be informed with all possible clarity what are the apprehended activities that persuaded the Detaining Authority to make the detention order. Relying on precedents, the Court held that it is well settled law that even where one of grounds, relied upon by the Detaining Authority to order detention, is vague and ambiguous, the constitutional and statutory right of the detenu to make an effective representation against his detention are taken to have been violated. Thus, the petition was allowed and the impugned order was quashed.

Click here to read the judgement.

Judgement reviewed by Bhargavi