J&K HC | Failure to communicate ground of detention to detenu is denial of Constitutional right under Art. 22(5); detenu to be released

Jammu & Kashmir High Court: This Habeas Corpus petition was filed before the Bench of Ali Mohammad Magrey, J., for quashing of a detention order passed by District Magistrate by which detenu was detained.

Mir Shafaqat Hussain, learned counsel on behalf of petitioner submitted that detenu can make a representation to the Detaining Authority, is a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India and is a right under section 13(1) of the Jammu and Kashmir Public Safety Act, 1978 but the same was denied. Mir Suhail, Addl. Advocate General stated that detenu’s activities were prejudicial to the security of the State as well as the public order. Detaining him would prevent him from indulging in such acts was approved by the Government and the State Advisory Board constituted under Section 14 of PS Act.

High Court found substance in the arguments of the petitioner. On the point where detenu was not communicated the ground of detention it was found that grounds of detention were in English language and it was not suggested from the file before the Court if the grounds were explained to the detenu in a language understood by him. Thereby, depriving detenu of the right to make representation against the same. Detenu’s constitutional right was infringed as the Detaining Authority failed to mention in the detention order about petitioner’s right to make representation which renders the impugned order invalid. Therefore, impugned detention order was quashed and direction to release the detenu was passed. [Ajaz Ahmad Sofi v. State of J&K, 2019 SCC OnLine J&K 408, Order dated 03-05-2019]

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