Detaining Authority Should Communicate To Detenue Time Limit In Which He Can Make Representation Against Detention: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court on Thursday said that a detaining authority should communicate to the detenue, in the grounds of detention, the time limit in which he can make a representation to it i.e., till the approval of the detention order by the State Government.

Justice M A Chowdhary reasoned that the detenue’s right to make a representation to the detaining authority is only available to him till approval of detention order by the Government and therefore the detaining authority should clearly communicate it to the detenu.

The bench was hearing a Habeas Corpus petition whereby the petitioner had assailed the detention order passed by District Magistrate under Section 8 of the Jammu & Kashmir Public Safety Act, 1978.

While perusing the execution report Justice Chowdhary noted that the detenu had not been provided with copies of dossier, FIRs, DDRs, charge-sheets and statements of witnesses.

"The detenue, thus cannot be said to be provided with whole of the record which based his detention, so as to make an effective representation. The failure on the part of the Detaining Authority to supply material renders detention illegal and unsustainable", the bench remarked.

Upon further examination the bench also noted that through the impugned order, the Detaining Authority has not communicated to the detenue his right to represent against the order, not to speak of the time limit, in which, he could make a representation to it, till approval of the detention order by the Government.

"Since the detenue’s right to make a representation to the detaining authority was only available to him till approval of detention order by the Government, it follows as a logical imperative that the detaining authority should have communicated to the detenue in the grounds of detention the time limit, in which, he could make a representation to it i.e., till the approval of the detention order by the State Government",the bench underscored.

In order to fortify the law the bench found it worthwhile to record the following observations of Supreme Court in Jitendra Vs. Dist. Magistrate, Barabanki 2004:

"We make no bones in observing that a partial communication of a right (in the grounds of detention) of the type in the instant case, wherein the time limit for making a representation is of essence and is not communicated in the grounds of detention, would vitiate the right fundamental right guaranteed to the detenue under Article 22(5) of the Constitution of India, namely, of being communicated, as soon as may be the grounds of detention.”

In view of the said legal position the bench allowed the petition and directed the respondents to release the detenu provided he is not required in connection with any other case.

Case Title: Tanveer Ahmed @ Jimmy Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 136

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