Detaining Authorities Must Be Given Proper Training About Requirements Of Law In Passing Detention Order: J&K HC Releases Man Allegedly Detained As Lashkar-e-Taiba Worker [Read Order]

"We are at pains to observe that in routine this Court comes across the cases in which the detention orders issued on the grounds of threat to the security and integrity of State are getting quashed due to non-adherence to technical requirements"

The Bench of Justice Rajnesh Oswal and Justice Rajesh Bindal further observed,

"In many petitions the grounds taken are non-furnishing of the material relied upon by the detaining Authority to the detenue; not informing the detenue about his right to make representation; not informing the detenue about the grounds of detention in the language that he understands etc. The law on which is well settled."

Matter before the Court

The appellant was detained by the order of the respondent No. 2 bearing No. 25/DMK/PSA/2018 dated 28.11.2018 under the provisions of Public Safety Act, 1978. The appellant had challenged the same on various grounds.

The respondents had filed a counter affidavit and produced the detention record before the learned Single Judge, however, the learned Single Judge dismissed the Habeas Corpus Petition and upheld the detention order passed by the respondent No. 2.

The appellant further preferred the instant appeal on the various grounds as narrated in the memo of appeal.

Contentions Raised before the Court and Court's Observation

The First contention of the appellant - He was not furnished the requisite material relied upon by the detaining authority while passing the detention order.

Court's Observation - The detention record contains the receipt duly signed by the appellant in English. It reveals that the appellant was supplied with the grounds of the detention along with all the documents annexed with the grounds of detention relied upon by the detaining authority.

The Second contention of the appellant - The appellant was not made to understand the grounds of detention in the language, which he understands because the detention order was in English and the appellant was conversant with only Kashmiri or Urdu language.

Court's Observation - A perusal of the detention record reveals that the documents were read over and explained to the appellant in Urdu language, which he fully understood, and in acknowledgement thereof, he has signed the receipt in English, as such, there is no substance in the contention of the appellant.

The Third contention raised by the appellant - There was a delay in passing the detention order as the last FIR was registered against the petitioner in December, 2017, whereas the detention order was passed in November 2018.

Court's Observation - The perusal of grounds of detention would reveal that detention order has been passed not only on the ground that two FIRs were registered against the appellant.

In the grounds of detention, besides these two FIRs, it is specifically mentioned that the appellant is an over ground worker of Lashkar-e-Toiba outfit and has been found to be involved in providing shelter and other logistic supports to the militants in order to carry out attacks on civilians and security forces.

So the Court noted that the contention that there is a delay in passing the detention order is also not tenable as the cause for detaining the appellant is continuous.

The fourth ground raised by the appellant - He was not informed of his right to make representation.

Court's Observation - A perusal of the detention order along with accompanying documents annexed with the petition clearly reveal that the appellant was informed of his right to make representation to the District Magistrate Kulgam within 12 days of passing of this order.

The receipt duly signed by the appellant would establish that he was informed of his right to make representation to the Government against his detention, if so desired.

Fifth Contention - What were the compelling circumstances which necessitated him to pass the detention order?

Another contention raised was that the detaining authority had not spelt out in the detention order about the compelling circumstances which necessitated him to pass the detention order when the appellant was already in custody.

Court's Observation - The Court noted that firstly, the order of detention must demonstrate awareness of the detaining Authority about the custody of the detenue and secondly that the detaining Authority must be further satisfied that the detenue is likely to be released from custody and nature of the activities of the detenue indicate that if he is released, he is likely to indulge in such prejudicial activities.

The Court noted that the Single Judge, though, has discussed the appellant being in custody at the time of passing of detention order but has not dealt with this issue in the right perspective.

Further, the Court was of the view that on this ground only the appeal deserves to be allowed.

However, before parting with the order, the Court observed,

"Due to the callous approach of the detaining Authorities in passing such orders, the whole purpose of the Preventive laws is getting defeated. Either the detaining Authorities are not aware of the requirements of law or they are dealing with the issues of preventive detention very casually. Be that as it may, the time has come when the detaining Authorities must be imparted proper training about the requirements of the law in passing the detention order so as to ensure that such orders are not set aside on technical grounds."(emphasis supplied)

The Registrar Judicial of the bench was directed to send copies of the judgment to the Chief Secretary, Commissioner/Secretary, Department of Home, and Law Secretary, Union Territory of J&K for compliance through email.

Notably, it was made clear that any such slackness in future may invite imposition of personal cost on the officer concerned.

Case Details:

Case Title: Sartaj Ahmad Allie v. State of J&K and others

Case No.: LPA No. 218/2019 (O&M) (In HCP No. 459/2018)

Quorum: Justice Rajnesh Oswal and Justice Rajesh Bindal

Appearance: Advocate Wajid Haseeb (for Appellant); AAG Showkat Naqashbandi (for Respondents)