Insufficient Provision of Documents Amounts to Prevention of Effective Representation: High Court of Jammu & Kashmir and Ladakh at Srinagar

The issue of insufficient provision of documents to a detenu, thus preventing effective representation against the detnetion, was examined by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR, consisting of Hon’ble Justice Sanjay Dhar, in the matter of Rouf Bashir Allie vs. Union Territory of J&K and Ladakh [WP(Crl.) No.89/2021], on 22.12.21.

The facts of the case were that the appellant had been put under preventive detention by the orders of the District Magistrate, Kulgam, the Detaining Authority, lodging at Central Jail, Srinagar. Aggrieved by the same, and challenging the detention, the petitioner has filed the present writ petition.

The Learned Counsel for the petitioner argued that the order of detention has been passed without application of mind, and that the grounds of detention are a mere replication of the dossier. Additionally, it was asserted that constitutional and statutory safeguards have not been followed in the instant case, and that the allegations against the petitioner are vague and were provided without translation to the petitioner, who is a semi-literate person. It was also contended that the petitioner had been kept in the dark with regards to the authority to which he may make a representation to.

The Learned Counsel for the respondent contended that the provisions of the Jammu & Kashmir Public Safety Act, 1978, have been complied with, in accordance with which the petitioner has been detained. Further, it was argued that the procedure as laid down had been followed, in addition to which the grounds were read over to the detenu, and that he had been provided all the relevant material. It was thus asserted that there had been proper application of mind in ordering preventive detention.

The High Court of Jammu & Kashmir and Ladakh at Srinagar, after perusing the evidence on record as well as the arguments of the counsels and the background of the case, concluded that the petitioner had been provided with insufficient material in order to make an effective representation. The Court observed that the petitioner had received only 4 leaves containing information pertaining to grounds of detention, notice an leave to the detenu, as well letters addressed and other material; however there was seen to be an absence of material grounds for the petitioner to make a representation. It was held that non-furnishing of relevant material forming basis of the grounds of detention deprives a detenu of his constitutional right to make a representation against the order of detention, and thus directly the order of detention unsustainable in law. The Court relied upon several precedents in order to lay down the necessity for adherence to constitutional and statutory safeguards. The order of detention was accordingly quashed, and the petitioner was directed to be released from custody.

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Judgement reviewed by Bhargavi

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