Supreme Court: Vacancies From Resignations under CUSAT Act Must Follow Communal Rotation  ||  Supreme Court: Forest Land Cannot Be Leased or Used For Agriculture Without Centre’s Approval  ||  Supreme Court: Gravity of Offence and Accused’s Role Must Guide Suspension of Sentence under CrPC  ||  Supreme Court: Arbitral Awards Cannot be Set Aside For Mere Legal Errors or Misreading of Evidence  ||  SC Acknowledges Child Trafficking as a Grave Reality and Issues Guidelines to Assess Victim Evidence  ||  Allahabad HC: When Parties Extend an Agreement by Conduct, The Arbitration Clause Extends Too  ||  Supreme Court: Issues of Party Capacity and Maintainability Must Be Decided by Arbitral Tribunal  ||  Supreme Court: Omissions in Chief Examination Can Be Rectified During Cross-Examination  ||  Supreme Court: Items Given by Accused to Police Are Not Section 27 Recoveries under Evidence Act  ||  Gujarat High Court: Waqf Institutions Must Pay Court Fees When Filing Disputes in State Tribunal    

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  

Share :        

Disclaimer | Copyright 2025 - All Rights Reserved