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Constitutional Right to Make a Representation arises from Adequate Furnishing of Material Forming Basis of Detention: High Court Of Jammu And Kashmir At Srinagar

Non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention, as was considered by the HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR, before a bench consisting of Hon’ble Justice Mr. Sanjay Dhar, in the matter of Ahtisham-Ul-Haq Bhat vs. Government of J&K and Anr. [WP(Crl.) No.35/2021], on 27.01.22.

By the medium of instant petition, petitioner has challenged legality and veracity of the detention order dated 03.03.2021, issued by District Magistrate, Bandipora (“Detaining Authority”) whereby Shri Ahtisham ul, resident of Chittaybandy Aragam Tehsil and District Bandipora (“detenu”) has been placed under preventive detention and directed to be lodged in Central Jail, Srinagar.

Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention has not been furnished to the detenu. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but the main ground that has prevailed during discussion are that the detenue has been disabled from making an effective representation against his detention as the material forming basis of the grounds of detention and the translated copies of grounds of detention have not been supplied to him.

The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It has been contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit

The Court noted that on perusal of the detention record produced by learned counsel for the respondents, the ground regarding non-supply of relevant material appears to have substance as the said record suggests that whole of the relevant material has not been supplied to the detenue. It was noted that the execution report in the record reveals that the detenue has been supplied only 02 leaves comprising copy of grounds of detention. Thus, it was held that the detenue has not been provided the copy of dossier and the copy of the FIR for the offences u/s 18, 39 of ULA(P) Act of P/S Aragam, which form the basis of the detention order. It was held that this goes to support the contention of the petitioner that he has not been supplied the relevant material. Obviously, the petitioner has been hampered by non-supply of the relevant material in making an effective representation against his detention before the concerned authority/Advisory Board.

In light of several precedents, the High Court held that non-furnishing of relevant material forming basis of the grounds of detention deprives a detenue of his Constitutional right to make a representation against the order of detention. The denial of this Constitutional right renders the order of detention unsustainable in law. It was observed that the cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the petitioner. The impugned order of detention was, therefore, held unsustainable. Accordingly, the same was quashed. The detenue was directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.

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Judgement reviewed by Bhargavi

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