Detention order illegal if authority fails to give relevant material to detenue: Jammu & Kashmir High Court

The High Court of Jammu and Kashmir and Ladakh recently ruled that a failure by the detaining authority to supply the detenue with the material forming the basis for detention would render a preventive detention order illegal [Umar Nazir Malik V/S UT of J&K and another]..The Court explained that all material forming the basis for detention should be given to the detenue so that he can make an effective representation against his detention, if needed. ."It is only after the detenu is supplied all the material relied upon by the detaining authority that he can make an effective representation to the detaining authority and also to the Government and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of the respondent No. 2 to supply material relied upon by him to the petitioner while issuing the order of detention to the petitioner, renders it illegal", the High Court's October 13 judgment stated..Justice Rajnesh Oswal made the observation while quashing a detention order issued by the District Magistrate of Kulgam under the Jammu and Kashmir Public Safety Act..The detention order was challenged by the detenue before the Court on the ground that the detaining authority had not followed Constitutional and statutory procedural safeguards..The High Court, in turn, found that the District Magistrate, Kulgam had relied upon a dossier submitted by the Senior Superintendent of Police (SSP) of Kulgam while formulating the grounds of detention. However, the execution report revealed that only four pages were provided to the detenue before his detention. These four leaves comprised the detention order, the notice of detention, and the grounds of detention..Neither the SSP's dossier nor a copy of the first information report (FIR) relied upon by the detaining authority to formulate the grounds for detention was provided to the detenu, the Court observed..As such, the Court found force in the detenue's contention that the detention order suffered from a non-application of mind. The Court further took note of the detenue's argument that the grounds of detention cited by the detaining authority mentioned cases in connection with which the detenue had already secured bail. ."There is no whisper as to whether the petitioner was in custody of the police or not. It is not forthcoming from the grounds of detention that how the respondent No.2 had observed that the petitioner was arrested in the instant case and later bailed out by the competent court of law. This alone shows that the impugned order has been passed without application of mind, which alone is a sufficient enough to quash the impugned order," the judge opined. .The Court proceeded to hold that the detention order passed by the District Magistrate against the detenu was not sustainable in the eyes of the law and quashed the same..Advocate M Ashraf Wani appeared for the detenue (petitioner). Deputy Advocate General Mubashir Majid Malik, along with advocate Younis appeared for the respondent-authorities. .[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.