Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order and allowed the petition as the Detaining Authority had failed to mention in the detention order about the petitioner’s right to make representation.

In the present appeal, Wajid Haseeb, counsel for petitioner vehemently opposed the detention order passed against him. The detenu is who is already facing trial before a competent court of law detenu was enlarged on bail by the competent court of law but despite such order, he was not released. It was further contended that owing to this, the possibility of the detenu to be implicated in anti-national protests, such as stone-pelting seems farfetched and grounds taken in the detention order and the material referred to and relied upon has no relevance as he wasn’t actually released. Furthermore, it was submitted that the absence of material the detention order is passed on mere ipsi dixit of detaining authority, therefore, the detention order is bad in law.

The Court relied on certain decisions of the Supreme Court to reach its verdict:

Khudiram Das v. State of W. B., (1975) 2 SCR 81 — the Supreme Court explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 — the Supreme Court has taken the view 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. The right of the detenu to be supplied copies of such documents, statements and other materials flow 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.

The Court opined that the only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material was not supplied to the detenu, the right of the detenu to file such representation was clearly impinged upon and the detention order stood resultantly vitiated. [Junaid Ahmad Dar v. State, 2020 SCC OnLine J&K 408, decided on 18-08-2020]

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