Procedural Requirements Must Be Strictly Complied With As They Are The Only Safeguards Available To The Detenue: J&K HC

INTRODUCTION

• The Jammu and Kashmir High Court, while setting aside a detenue free from the preventive custody, held that procedural requirements are the only safeguards available to the detenue, hence they must be strictly complied with.

ARGUMENTS BY THE PETITIONER

• While appearing for the Petitioner, Advocate M. Ashraf Wani challenged the detention order on three grounds.
• It was said that, the detention was done on the basis of vague allegations.\
• There was delay in execution of the detention order.
• The petitioner could not have been granted bail owing to nature of allegations under the NDPS, as the order of detention is bad in law.
• The petitioner also challenged the preventive detention order, passed against him in connection to the alleged commission of offences under the NDPS Act, when he was in custody.

ARGUMENTS BY THE RESPONDENTS

• Additional Advocate General Mir Suhai, representing the respondents, argued that all procedural and statutory safeguards that are enshrined under Article 22(5) of the Constitution of India and Section 13 of the Act were complied while passing the detention order.
• They also claimed to have supplied the petitioner with all the requisite documentation to enable him to make a representation before the detaining authority and the Government.
• It was further stated that the contents of the detention order or warrant and the grounds of detention were also read over and explained to the petitioner in the language which he completely understood.

CASE REFERRED

• The Court while passing this judgement, relied upon the Supreme Court's decision in Thahira Haris v. Govt. of Karnataka (2009), where it was held, "Our Constitution provides adequate safeguards under the clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order, made under any law providing for the preventive detention”.
• He has been provided with the right to be supplied with copies of all documents, statements and other materials relied upon on the grounds of his detention without any delay.
• The predominant object of communicating the grounds of detention is to enable the detenue at the earliest opportunity to make effective and meaningful representation against his detention.

OBSERVATIONS

• Justice Rajnesh Oswal, while delivering the judgement, made it clear that the procedural requirements must be followed scrupulously, if any value is to be attached to the liberty of the subject, and the constitutional rights that are guaranteed to him in that respect.
• Therefore the Court cannot go behind the subjective satisfaction of the detaining authority.
• The High Court examined the grounds of detention and noted that the detention order was passed on the ground of the involvement of the petitioner for the commission of offences mentioned under various provisions of the erstwhile J&K Ranbir Penal Code Sections, along with Sections 8, 21 and 29 of the NDPS Act.
• It further noted that the detaining authority had relied upon several FIRs registered against the petitioner, while passing the detention order.
• However, none of the FIRs were ever provided to the petitioner.

REMARKS OF THE COURT

• Finally, the Court concluded that the petitioner was deprived of his right to make an effective representation against his preventive detention to the detaining authority, and also to the Government.
• It was held that the petitioner must be supplied with all the material so that he can make an effective representation to the detaining authority and also to the Government, and if the same is not done, then he is being deprived of his valuable constitutional right.
• The Court held the failure on the part of Respondent No. 2 to supply the material relied upon by him, while passing the detention order, as illegal.

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