High Court holds the Detention Order of the Detainee to be in violation of Article 22(5) of the Constitution of India [Read Order]

On, 22 May 2020, The High Court of Jammu and Kashmir in the case titled Ab. Hamid Rather v. Union Territory of J&K and Ors., the single judge bench comprising of Honorable Justice Ali Mohammad Magrey quashed the detention order of the detainee due to the absence of material.

FACTS OF THE CASE

­The Petitioner Ab. Hamid Rather was arrested and detained by the police authorities on 14^th March 2020. The order of detention was passed under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988. He was then shifted to the District Jail of Baramulla under this order.

ARGUMENTS RAISED BY THE PETITIONER

According to Petitioner there do not exist compelling reasons or circumstances in the order of detention and detention order was passed by detaining authority while the detainee was already in custody.

The detainee was not informed of his right to representation against the detention order and hence this is violative of Article 22(5) of the Constitution of India and provisions of J&K Public Safety Act 1987.

DECISION OF THE COURT

The court observed that the detainee has been already enlarged on bail by the competent Court and police arrested him one year later under the Public Safety Act. Hence, there is no possibility for the detainee to get involved in the activities prejudicial to the maintenance of public order as he is already facing trial before the competent court of law. The court observed that in the absence of material, the detention order becomes bad in law. Also, for effective representation- relevant grounds of detention is necessary and which was not provided to the detainee and this is violative of  Article 22(5) of the Constitution of India.

The court relied on the judgment of Supreme Court in Ibrahim Ahmad Batti v. the State of Gujarat, (1982) 3 SCC 440 where it was held that detainee authority must-

1. All documents, statements, and other materials of grounds of reference must be furnished to the detainee in writing. This has to be done in 5 days and in exceptional circumstances within 15 days.
2. All such materials should be furnished in a language or script the detainee understands.

And that failure to comply will lead to violation of Article 22(5) of the Constitution of India.

In the present case, no material referred to in the detention order was supplied to the detainee. The court ultimately quashed the detention order and directed the release of detainees.

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