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Detention of a detenu is vitiated if material in the shape of grounds of detention with no other material or documents, as referred to in the order of detention is provided, as observed by the High Court of Jammu & Kashmir and Ladakh at Srinagar, before the HON’BLE JUSTICE MR. ALI MOHAMMAD MAGREY, in the matter of Bashir Ahmad Beigh vs. Union Territory of Jammu & Kashmir and Ors. [WP (Crl) 171/20], on 07.12.21.

Detenu, Bashir Ahmad Beigh, of District Baramullah through his wife, through the present petition, sought quashment of detention order dated 21.10.2020 purporting to have been passed by District Magistrate, Baramulla, with consequent prayer for release of the detenu forthwith. The grounds of challenge were that firstly, no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, more so in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody; secondly, the detenu had not been provided the material forming basis of the detention order, to make an effective representation against his detention order; thirdly, that the impugned order has been passed without proper application of mind; and fourthly, that the detention order was not provided to the detenu within the statutory period. The respondents submitted that the detention order was well founded in fact and law and sought dismissal of the Habeas Corpus Petition.

The Learned Counsel for the Petitioner submitted that the grounds taken in the detention order and the material referred to and relied upon have no relevance because the detenu was in custody, despite bail granted by the competent court of law, therefore, there is no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. It is 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. The Counsel relied on precedents in order to assert 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. It was argued that all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution of India.

The Honourable High Court of Jammu & Kashmir and Ladakh at Srinagar, held that, examining the present case on the touch stone of the settled position of law and perusal of record, the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material or documents, as referred to in the order of detention. On these counts alone, the detention of the detenu was held vitiated, the detenu having been prevented from making an effective and purposeful representation against the order of detention.

Accordingly, the detention order dated 21.10.2020 was quashed and the detenu, Bashir Ahmad Beigh, was directed to be released from preventive custody forthwith.

Click here to read the judgement.

Judgement reviewed by Bhargavi.