The Hon’ble Jammu and Kashmir and Ladakh High Court opined that it was incumbent upon Respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which Petitioner’s involvement in the FIR was shown.
The Bench held that the detenue cannot be expected to make an effective and purposeful representation, which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which detention is based, is supplied to the detenue.
It was also noted that when there is unsatisfactory and unexplained delay in executing the order of detention, such delay would throw considerable doubt on the genuineness of the subjective satisfaction recorded by the detaining authority. This would lead to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenue.
Brief Facts:
The Petitioner was taken into preventive custody under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the “Act, 1988”).
The present writ has been field against the said order of detention.
Contentions of the Petitioner:
It was alleged that the grounds of detention were vague, non-existent and no prudent man could make a representation against such allegation and passing of detention order on such grounds was unjustified and unreasonable. Further, that the detaining authority mentioned one FIR in the grounds of detention, however, no specific allegation was given regarding the involvement of the detenue in the cases.
It was urged that the constitutional rights guaranteed to the detenue under Article 22(5) of the Constitution of India stood infringed.
Contentions of the Respondents:
It was contended that the detention of the detenu was required to prevent him from anti- social activities as he was indulging in Drug Trafficking and 30 Grams of Brown Sugar had been recovered from his possession.
Observations of the Court:
It was observed that there was no mention of the particulars of the places, period and the identity of the operatives of the alleged drug mafia. These grounds, being vague and lacking in material particulars, the detenue could not have made an effective representation against his detention. Thus, Article 22(5) of the Constitution was violated.
It was ruled that it was incumbent upon Respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which Petitioner’s involvement in the FIR was shown.
The Bench held that the detenue cannot be expected to make an effective and purposeful representation, which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which detention is based, is supplied to the detenue.
It was also noted that when there is unsatisfactory and unexplained delay in executing the order of detention, such delay would throw considerable doubt on the genuineness of the subjective satisfaction recorded by the detaining authority. This would lead to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenue.
The decision of the Court:
Based on the aforementioned findings, the petition was allowed.
Case Title: Tariq Ahmad Wagay v. U T of Jammu & Kashmir & Anr.
Case No.: WP(Crl) No. 254/2023
Coram: Hon’ble Mr. Justice M. A. Chowdhary
Advocate for Petitioner: Adv. Mr. Asif Ali Dar
Advocates for Respondents: Adv. Mr. Sajad Ashraf
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