Refusal To Supply Documents On Detention Is A Violation Of Detenue's Constitutional Rights: J&K High Court

The observation came from Justice Rajnesh Oswal:

"It is only after the petitioner is supplied all the material that he can make an effective representation to the Detaining Authority and also to the Government and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of the respondent No. 2 to supply material relied upon by him while passing the detention order renders it illegal."

The petitioner had moved the Court challenging a detention order passed by the Detaining Authority alleging that he had not been furnished the material relied upon by the authority for the grounds of detention and other connected documents and he had been deprived of his right to represent against the order of detention.

Further, he contended that the allegations levelled against him were purely criminal in nature and the detaining authority had failed to show why the law of the land is not sufficient to restrain the detenue from indulging in the activities which are criminal in nature.

The petitioner was allegedly apprehended from his home on 06.09.2020 and then implicated in an FIR. The charges were framed against him on 06.02.2021 and he was bailed out by the Court on 13.02.2021. However, the detenue was not released from custody but implicated in another FIR. 

The respondents argued that as per the safeguards guaranteed to the petitioner-detenue under Article 22(5) of the Constitution and section 13 of the J&K Public Safety Act, 1978, an Advisory Board was constituted under section 15 of the Act and it was only after the opinion of the said Board that the order of detention was confirmed by the Government.

It is further stated that the detenue was detained in pursuance of the detention order as he had remained in touch with two militants and was working as an overground worker while keeping vigil on Security Forces besides passing information to these militants. Finding the activities of the detenue prejudicial to the security of the State, the detention order was passed and the same was executed on 28.02.2021 through Sub Inspector who handed over the detenue to the Assistant Superintendent, District Jail, against proper receipt.

Additionally, it was argued that the detenue was informed about his detention and the grounds of detention vide communication dated 25.02.2021., and that he was furnished with sufficient particulars so as to enable him to make an effective representation. He was also informed about his right to make representation against the said order both before the Government as well as before the detaining authority. 

The Court observed that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority. It also mentioned that neither in the dossier nor in the order of detention, it was mentioned that the petitioner had been granted bail on 13.02.2021 before the issuance of the detention order.

This points out the fact that the entire material was not placed before the detaining authority to enable it to record its subjective satisfaction that the passing of detention order is necessary to prevent the petitioner from indulging in activities those are prejudicial to the security of the State, which in court's opinion, vitiates the order of detention. Keeping in view the above, the court decided to allow the petition and directed the release of the detenue.

Petitioner was represented by advocate Shafqat Nazir and the respondent was represented by advocate Insha Haroon.

Case Title : Adil Farooq Mir v State of J&K and others

Citation: 2022 LiveLaw (JKL) 27