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Aadil Qayoom Najar Vs. State of J&K and Ors. - (High Court of Jammu and Kashmir) (26 Dec 2018)

Failure on part of detaining authority to supply the material renders detention order illegal

MANU/JK/1244/2018

Criminal

Challenge in present petition is to the order passed by District Magistrate, Srinagar-Respondent No. 2 herein in exercise of vested in him under Section 8 of the J&K Public Safety Act, whereby Shri Aadil Qayoom Najar (detenue), has been taken into preventive custody so as to prevent him from acting in any manner prejudicial to the maintenance of security of the State.

Learned counsel for the Petitioner projected various grounds while seeking quashment of the order impugned but the star ground is that the detenue has been disabled from making an effective representation by not supplying the material forming base of the grounds of detention and the consequent order of detention and further added that the detenue has also been disabled from making an effective representation by not supplying him the translated copies of the ground of detention which are in English language besides being in a hyper technical language which the detenue is not in a position to understand.

Involvement of the detenue in the criminal cases, appears to have heavily weighed with the detaining authority while passing the detention order. Nothing has been brought on record to indicate that the copies of aforementioned FIRs, statements recorded under Section 161 of Code of Criminal Procedure, 1973(CrPC) and other material collected during investigation has been provided to the detenue. Rather the record produced by the respondents corroborates the fact that the material relied on by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue. The detenue cannot be expected to make an effective and purposeful representation which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material on which detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable.

The Hon'ble Apex Court in "Sophia Ghulam Mohd. Bham V. State of Maharashtra and others” observed that, the right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.

In view of the law laid down by the Hon'ble Apex Court, the impugned order does not sustain. The petition is allowed. Impugned order is quashed. Further, custody of the detenue shall be governed in accordance with the orders as shall be passed by the Court of competent jurisdiction in the criminal cases registered against him.

Tags : DETENTION   QUASHMENT   GRANT  

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