The High Court of Jammu & Kashmir allowed a petition of a detained individual challenging the detention order and ruled that the non-supply of relevant material had prevented the detained person from making an effective and purposeful representation which constitutes a violation of his constitutional right as Article 22(5) provides him the right to be communicated about the grounds of detention.
Brief Facts of the Case:
The district magistrate detained an individual under section 8 of the Jammu and Kashmir Public Safety Act, 1978, in order to prevent actions that could seriously disrupt public order and the detenu has challenged the detention order.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that the allegations on which he has been detained are vague and non-existent. The petitioner has contested the detention order on multiple grounds. Firstly, they argue that the order did not provide the procedural safeguards required by the Indian Constitution and the Public Safety Act. Secondly, they contend that the evidence used by the Detaining Authority lacked sufficient support. Additionally, they claim that the grounds for detention were vague, with no specific incidents, dates, or places mentioned, and that the order was reissued without presenting new evidence after previous detentions were quashed. The individual also asserts that there was no clear link between them and a terrorist organization and that their bail status in previous cases was not mentioned.
Furthermore, he contended that the petitioner was not informed of his right to make a representation against the detention order, which they argue is a violation of his constitutional right under Article 22 of the Constitution. They also contended that the detention order was passed without application of mind and the grounds for detention were not explained in a language they could understand.
Contentions of the respondent:
The learned counsel appearing on behalf of the Respondent contended that the activities of the detenu are highly prejudicial to the maintenance of public order and he was detained to prevent him from such actions. He also contended that all the procedural safeguards and constitutional guarantees were duly complied with by the detaining authority. He further contended that the grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority have been provided to the detenu and he was also informed of his right to make an effective representation against the order of detention.
Observations by the court:
The court observed that the detenu was not provided with a copy of the dossier of detention which prevented him from making an effective representation due to the non-supply of relevant material relied upon by the detaining authority. The court held that this non-supply of relevant material had prevented the detenu from making an effective and purposeful representation and also emphasized that article 22(5) provides the right to be communicated on the grounds of detention and also provides specific protections to trials and detainees in India.
The court further observed that the right to personal liberty is guaranteed and there must be a cogent cause and strict adherence to the safeguards prescribed in order to curtail the freedom and the detention order is unsustainable in the eyes of the law as the detaining authority has not considered the representation of the detenu and there is violation of the right of detenu under Article 22(5) of the constitution.
The decision of the Court:
The court allowed the petition.
Case Name: Firdoos Ahmed Khan vs UT of J&K
Coram: Hon’ble Mrs. Justice Sindhu Sharma
Case No.: WP(Cr1) No. 70/2022
Advocates of the Petitioners: Mr. Qadri Towkeer
Advocates of the Respondent: Mr. Eishaan Dadhichi
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