Jammu and Kashmir High Court quashes the Detention Order of the Detainee due to the violation of Article 22(5) of the Constitution of India

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On 20 May 2020, the Single Judge Bench of Hon’ble Mr. Justice Ali Mohammad Magrey, via video-conferencing, heard the case of Ab. Hamid Rather vs. Union Territory of J&K and Ors. The Court quashed the detention order of the detainee arrested under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988.

Brief Facts of the Case

The Police personnel of Vilgam Police Station arrested Ab. Hamid Rather at his home at the midnight of 14 March 2020. The police authorities detained him at the Police Station. The Divisional Commissioner Kashmir– respondent No.2 passed a detention Order No. DIVCOM- “K”/130/2020 dated 14-03-2020. The Detaining Authority here passed the order under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988. On, 15-03-2020, the police shifted him to the District Jail of Baramulla under this order.

Contentions of the Petitioner 

Mr. Imtiyaz Ahmad Sofi, the learned counsel for the petitioner argues the following-

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That firstly, there was no compelling reason or grounds for detention disclosed in the order.

Secondly, at present, there is no involvement of the detainee in activities prejudicial to the maintenance of public order.

Thirdly, the detaining authority passed the detention order while the detainee was already in custody.

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Fourthly, the material forming the basis of the detention order was not provided.

Fifth, the Respondents did not inform the detainee that he can make a representation against the detention order, and this violates Article 22(5) of the Constitution of India.

This Article mandates the detaining authority to afford the detainee the earliest opportunity of making a representation against the order. Lastly, this detention order also violates the provisions of J&K Public Safety Act 1987.

Contentions of the Respondent 

Mr. Asif Maqbool, Deputy Advocate General, and Mr. Syed Iram, the learned counsels for the respondents filed a counter-affidavit. They argued that the detention order is well-founded and is in accordance with the law. And therefore, the Habeas Corpus Petition should be dismissed.

Court’s Analysis

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The Court said that the Competent Court of law has already enlarged the detainee on bail. Also, the police arrested him one year later under the Public Safety Act. Hence, there is no possibility for the detainee to get involved in the activities prejudicial to the maintenance of public order as he is already facing trial before the competent court of law.

The Court said that in the absence of material, the detention order becomes bad in law. Additionally, the detainee can make an effective representation only if he is provided with relevant grounds of detention which is not provided to him. Thus, this a violation of Article 22(5) of the Constitution of India. The Court also referred to the Supreme Court’s judgment in Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440.

The Supreme Court, in this case, made it clear that the detaining authority must adhere to the following: 

a) All documents, statements, and other materials of grounds of reference must be furnished to the detainee in writing. This has to be done in 5 days and in exceptional circumstances within 15 days.

b) All such materials should be furnished in a language or script the detainee understands.

Hence, the Failure of the above-mentioned duties will lead to violation of Article 22(5) of the Constitution of India. In the present case, no material referred to in the detention order has been supplied to the detainee. The detainee has been prevented from making an effective representation against the detention order. Therefore, the detention of the detainee is vitiated. 

Held

The Court quashed the detention order No. DIVCOM- “K”/ 130/2020 dated 14-03-2020, passed by Divisional Commissioner Kashmir– Respondent No. 2. The Court further directed the release of the detainee and disposed of the petition. Additionally, it directed the Judicial Registrar to send a copy of this order to Jail Superintendent, Baramulla for compliance via email.


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