J&K HC Quashes Preventive Detention Order Citing Violation of Article 22(5) Due to Non-Supply of Essential Documents and Denial of Opportunity for Effective Representation

Court’s Decision:

The High Court of Jammu & Kashmir and Ladakh quashed the preventive detention order issued under the Public Safety Act (PSA), 1978, citing violations of constitutional safeguards. The court held that the failure of the authorities to consider the petitioner’s representation and supply essential documents rendered the detention order unsustainable in law. The detenue was ordered to be released from preventive custody unless required in connection with any other case.

Facts:

The petitioner challenged the detention order issued by the District Magistrate, Bandipora, which placed the detenue under preventive detention in Central Jail, Jammu, under the PSA. The petitioner argued that the detention was carried out without proper application of mind and was based on vague, fabricated allegations with no nexus to the detenue. Moreover, the petitioner contended that vital procedural safeguards had been ignored, including the failure to supply all materials forming the basis of the detention order, and that a representation made by the detenue through his father had gone unconsidered.

Issues:

1. Whether the non-consideration of the representation made against the detention order violated the constitutional rights of the detenue.
2. Whether the non-supply of all materials relied upon for the detention order invalidated the detention.

Petitioner’s Arguments:

The petitioner argued that the detention order was issued mechanically and without proper justification. The grounds of detention were vague and insufficient for a prudent person to make an informed representation. Furthermore, the detaining authority did not supply the dossier of detention, which hindered the detenue’s ability to challenge the detention effectively. The petitioner also submitted that a representation made to the authorities had not been considered, which amounted to a violation of the constitutional right guaranteed under Article 22(5) of the Constitution.

Respondent’s Arguments:

The respondents argued that the detenue’s activities were prejudicial to the maintenance of state security, justifying the detention under the PSA. They asserted that all statutory and constitutional requirements had been met, including informing the detenue of his right to make a representation. They further contended that the detention order was valid and legally sound, and that the grounds raised by the petitioner were without merit.

Analysis of the Law:

The court focused on the constitutional safeguards enshrined in Article 22(5) of the Indian Constitution, which mandates that a person detained under preventive laws must be given the opportunity to make an effective representation. The court also emphasized the legal requirement for the detaining authority to provide all materials that form the basis of the detention order, ensuring that the detenue can exercise their right to challenge the detention.

Precedent Analysis:

The court referred to several key precedents, including:

• Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, where the Supreme Court held that the failure to consider a detenue’s representation in a timely manner amounts to a violation of constitutional safeguards.
• Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98, reaffirmed the necessity for authorities to process and respond to representations made by detenues under preventive detention laws.
• Sophia Ghulam Mohd. Bham V. State of Maharashtra, AIR 1999 SC 3051, which reiterated that non-supply of essential documents to the detenue hampers their right to make an effective representation.

Court’s Reasoning:

The court observed that the authorities had not rebutted the petitioner’s claim that the representation against the detention had been submitted and remained unaddressed. The court noted that the receipt of the representation was acknowledged by the authorities but no decision was communicated, amounting to a violation of the constitutional safeguard under Article 22(5). Moreover, the non-supply of the dossier of detention and other relevant documents hindered the detenue’s ability to effectively challenge the detention order, further rendering the order unsustainable.

Conclusion:

The High Court concluded that the failure to consider the representation and the non-supply of essential documents violated the constitutional and legal rights of the detenue. As a result, the detention order was quashed, and the detenue was ordered to be released from preventive custody unless he was required in any other pending cases.

Implications:

This judgment reinforces the importance of adhering to constitutional safeguards when invoking preventive detention laws like the PSA. It highlights the need for detaining authorities to supply all relevant materials and promptly consider any representations made by detenues, as failure to do so can lead to the invalidation of the detention order.

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