Detenue Not Supplied With Documents Relied Upon By Authority: J&K HC Quashes Preventive Detention [Read Judgment]

The petition was decided by Justice Ali Mohammad Magrey who quashed the preventive detention dated January 22 and directed his release forthwith.

Bhat had claimed that he had not been provided the material forming basis of the detention order and that there were no compelling grounds to keep him in custody. Reliance was placed on Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440.

He added that the detaining authority had passed the detention order "on mere ipsidixit" and thus the order was bad in law. Reliance was placed upon T. V Sravanan Alias S.A.R Prasana v. State through Secretary & Anr., (2006) 2 SCC 664.

In view of the above submissions, Justice Magrey cited Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531, wherein the Supreme Court had held that,

"Documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents, statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised."

Accepting the Petitioner's arguments and upon failure of the detaining authority to produce the detention record, he stated,

"Examining the present case on the touchstone of the above settled position of law and perusal of record, the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material/documents, as referred to in the order of detention. On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, the detenu having been prevented from making an effective and purposeful representation against the order of detention."

However, he found that Bhat was also in custody in connection to offences under Unlawful Activities (Prevention) Act, registered as FIR No.116/2018. In this regard the court directed that he may remain in custody unless released on bail.

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