While Formulating Grounds of Detention, Detaining Authority Has to Apply Its Own Mind: J&K High Court

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EXCERPT

The petitioner challenged the impugned order No. 10 of 2020 dated 04.11.2020 stating his detention was illegal, as the constitutional safeguards provided under Article 22 (5) of the Indian Constitution have been observed in the breach.

FACTS

The petition challenged the order issued by the District Magistrate, Jammu, whereby the petitioner Prabhakar Singh was placed under preventive detention in order to prevent him from acting in any manner which is prejudicial to the maintenance of the public order.  

ARGUMENTS BEFORE THE COURT

The petitioner claimed that the grounds of detention and the materials submitted in support had not been furnished to him. He was prevented from making an effective representation against the impugned order of his detention and that the grounds of detention were not read to him in Dogri language, which he understood. It was contended that the detaining authority acted without any proper application of mind. On the grounds of detention, reliance has been placed upon even those FIRs in which the petitioner had been acquitted after full dressed trial. It was also contended that grounds of detention were xerox copy of the police dossier. The petitioner argued that the impugned order of detention is illegal, as the constitutional safeguards provided under Article 22(5) of the Indian Constitution have been observed in the breach.

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The respondents disputed the averments made in the petition. It was stated that all the provisions of the Jammu and Kashmir Public Safety Act, 1978, along with constitutional safeguards, had been fully complied with. The respondents also stated that the petitioner was detained in the proper application of mind and furnishing relevant materials. The respondent argued that the petitioner had the propensity to indulge in criminal activities which cannot be tackled by taking resort to normal criminal laws.

COURT’S OBSERVATION

The Court compared the present case with the police dossier and observed that the Detaining Authority had simply reproduced the police dossier while narrating the grounds of detention and concluded by stating it is satisfied based on the contents of the dossier submitted by the police. The Detaining Authority did not apply their mind to the materials on record while passing the order of detention. The Court also found that grounds of detention were formed based on three FIRs where the petitioner had earned acquittal after full dressed trial before the criminal courts. The Supreme Court has clearly expressed that when a detenue is an illiterate or semi literate person who cannot read or understand the English language, the grounds of detention should be explained to him in the language he knows or understands so that he can avail the statutory right of making a representation. As per the records in the present case, the Court observed that the translated version of the grounds of detention and material in support had not been provided to the petitioner.

COURT’S DECISION

The Court found that the petitioner has been put at a disadvantageous position in making an effective representation against the impugned order of detention. While testing the legality of the preventive detention of a person, the Court has to see whether the detention of the person has been ordered in accordance with the procedure established by law and whether in doing so the constitutional mandate and the statutory requirements have been followed. In the present case, the respondents had not adhered to the legal or constitutional safeguards while passing the detention order against the petitioner. The detenue was thus directed to be released from preventive custody, provided that he wasn’t required in connection with any other case.

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