J&K HC | Court is not barred from scrutinizing the subjective satisfaction of the detaining authority in any given case; Order of detention set aside

Jammu and Kashmir High Court: Puneet Gupta, J., while setting aside the detention order, reiterated that subjective satisfaction of the detaining authority is not immune from judicial reviewability.

 Background

The petitioner has challenged detention order dated 10-03-2020, passed by respondent 2, whereby the petitioner Mohd. Amin Dar has been detained in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 The detention order has been challenged on the ground that

  1. The grounds of detention are vague and non-existent.
  2. That the order has been passed on an alleged single activity of the petitioner.
  3. That the petitioner was already in custody in FIR No. 27 of 2020 registered with Police Station, Magam and had neither applied for bail nor was bail due to him in view of the provisions of NDPS Act.
  4. That no reason has been given which compelled the respondents to issue the order of detention.
  5. That the respondent only relied upon police dossier and the copy of dossier and the material have not been provided to the petitioner while detaining the petitioner.
  6. That the petitioner only understands Urdu and Kashmiri language whereas the detention order was in English and the translated version of the detention order has not been provided to the petitioner thereby depriving him of making effective representation in the matter.

 Issue

Whether detention order made stands in compliance with the statutory provisions restricting personal liberty?

 Observations

In pursuance of its decision, Court observed,

“Merely informing the petitioner that the petitioner has right to be heard in person by the competent authority does not fulfill the responsibility of the respondents unless the petitioner has been provided with the relevant material as stated above. The providing of material by the detaining authority is not mere formality and if the same is not done by the detaining authority the detention order cannot be upheld in law.” With respect to the alleged grounds of detention being bad in law, the Court noted, “The order of detention cannot be passed on mere assumptions and the detaining authority has to address itself to the question if the ordinary law to which the petitioner is subjected to, is sufficient to deal with the situation.” Reliance was further placed on, Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, wherein the Supreme Court held, “whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenue was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.”

 Decision

Quashing the said detention order, the Court held, “…the detention order is bad for the reason that the necessary material was not provided to the petitioner, the single alleged act of the petitioner was not sufficient to invoke the detention order and that the petitioner has been deprived of his right to representation before the competent authority in an effective manner as he was deprived of the relevant material which formed basis of detention order.”[Mohammad Amin Dar v. UT of J&K, 2020 SCC OnLine J&K 692, decided on 23-12-2020]


Sakshi Shukla, Editorial Assistant hs put this story together

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