J&K HC | Order of detention cannot be a mere reproduction of the dossier, without any judicial application of mind; Petition allowed

Jammu and Kashmir High Court: Sanjay Dhar J., while allowing the present petition held, “The service of the grounds of detention on the detenue is a very precious constitutional right and the object behind the same is to enable the detenue to file an effective representation. It will be an empty formality to supply the grounds of detention to the detenue unless he is in a position to understand the same.”

Brief Facts

The present petition is moved against the order dated 17-07-2020, issued by District Magistrate, Samba (“Detaining Authority”) whereby Chain Singh son of Late Shri Rawail Singh, resident of Village Birpur, District Samba (“detenu”) has been placed under preventive detention and lodged in Sub Jail, Hiranagar.

 Contentions

Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with and that the allegations made against the detenue in the grounds of detention are vague. Furthermore, it has been pleaded that the translated version of the documents/grounds of detention has not been provided to the detenue who is a semi-literate person and neither has the petitioner been informed of the rightful authority against which he can move his representation.

The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following due procedure that the grounds of detention were read over to the detenue. Moreover, there has been proper application of mind for detaining and that the detenue has been provided with all the requisite material related to the order.

 Issue

Whether the detention order made by the authority complying with all due procedure and Constitutional safeguards?

 Observation

Rejecting the argument of the respondent counsel, the Court held, “In the instant case it is clear from the detention record that the petitioner has not been furnished the translated version of the grounds of detention nor has he been provided the material on the basis of which grounds of detention have been formulated. Further, the executing officer has not filed an affidavit to show that he has fully explained the grounds of detention to the detenue in the language he understands.” The Court went on to say, “Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.”  With respect to the contention, that the order is a mere reproduction of the dossier lacking any application of mind, the Court placed reliance on the case of Jai Singh v. State of J&K, (1985) 1 SCC 561; wherein the Court examined the order and the dossier, concluding that the format, usage of words and the manner of expression in both the said documents remain essentially the same.

Decision

While allowing the present petition, the Court quashed the impugned order dated 17-07-2020 and further directed the authorities concerned to release the detenue from the preventive custody.[Chain Singh v. Union Territory of J&K,  2020 SCC OnLine J&K 539, decided on 12-10-2020]

Counsel for the Petitioner: S. M. Chowdhary, Advocate

Counsel for the Respondent: Aijaz Lone, Dy. AG.


Sakshi Shukla, Editorial Assistant has put this story together

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