To make the Constitutional and Statutory Right available, it is necessary that Detenu be informed: High Court of Jammu & Kashmir and Ladakh at Jammu
Provision of relevant material to the detenu, is necessary to prevent the detenu from making an effective representation against his detention, as observed by the High Court of Jammu &amp; Kashmir and Ladakh at Jammu, before the HON’BLE JUSTICE MR. TASHI RABSTAN, in the matter of Ali Hayder &amp; Anr. vs. Union Territory of Jammu and Kashmir &amp; Ors. [WP(Crl) No.32/2021], on 09.12.21. The petitioner, Ali Hayder son of Abdul Aziz resident of Village Gundha Tehsil Khawas, District Rajouri had filed the present habeas corpus petition through his copusin, questioning the detention order dated 20.05.2021 enforced against him by respondent, the District Magistrate, Rajouri, under Section 8 of the Jammu &amp; Kashmir Public Safety Act, 1978. The Learned Counsels for the appellant, Mr. Sheikh Altaf Hussain, contended that the detenu has never committed any criminal or anti-national offence however he along with three other persons, has been implicated in a false and frivolous case registered with Police Station Budhal, Rajouri. It was argued that there was no danger to public order especially when the petitioner was already in custody for the alleged commission of offence punishable under Sections 295-A and 429 of the Indian Penal Code, 1860, wherein no bail had been granted by the competent court of law and as such, no situation arose for slapping the detention order on the detenu. was is further submitted that the material relied upon by the detaining authority, the grounds of detention and the confidential reports submitted by District Special Branch, Rajouri, were never supplied to the detenu; and that the petitioner made a representation on 31.05.2021 in absence of supply of above material, but the same had not been decided by the respondents. As the material relied upon by the detaining authority on the basis of which the detention order was passed, had not been supplied to the detenu, it was contended that the order of detention is liable to be quashed as the detenu could not make an effective representation to the respondents against his detention. The Learned Counsel for the respondent, Mr. Bhanu Jasrotia, argued that the detenu had been detained as per the provisions under Section 8 of Jammu and Kashmir Public Safety Act, 1978 on the ground to maintain proper order, harmony and to prevent violence of any kind in the district and also to prevent the detenu from acting in any manner which is highly prejudicial to the maintenance of public order. Thus, it was contended that the petition was not maintainable. The Honourable High Court of Jammu &amp; Kashmir and Ladakh at Jammu, held that the failure on part of detaining authority to supply material relied at the time of making detention order against the detenu, renders detention order illegal and unsustainable. It observed that Article 22(5) of the Constitution provides a precious and valuable right to a person detained under preventive detention law, to make a representation against the detention. The detenu was held in custody on a mere suspicion that his apprehended activities may be prejudicial to the maintenance of public order or security of the State. Article 22(5), of the Constitution of India and Section 13 of the Jammu &amp; Kashmir Public Safety Act, 1978, thus makes it obligatory for a Detaining Authority to provide detenu an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenu to convince the Detaining Authority and Government, as the case may be, that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the constitutional and statutory right available to detenu meaningful, it is necessary that detenu be informed with all possible clarity what are the apprehended activities that persuaded the Detaining Authority to make the detention order. Relying on precedents, the Court held that it is well settled law that even where one of grounds, relied upon by the Detaining Authority to order detention, is vague and ambiguous, the constitutional and statutory right of the detenu to make an effective representation against his detention are taken to have been violated. Thus, the petition was allowed and the impugned order was quashed.
 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(Crl) No.32 2021 CrlM Nos.2141 2021 & 965 2021 Ali Hayder Reserved on 06.12.2021 Pronounced on 09.12.2021 …Petitioner(s) Through: Mr. Sheikh Altaf Hussain Advocate. Union Territory of Jammu and Kashmir and others …Respondent(s) Through: Mr. Bhanu Jasrotia GA. Coram : HON’BLE MR. JUSTICE TASHI RABSTAN JUDGE JUDGMENT The petitioner namely Ali Hayder son of Abdul Aziz resident of Village Gundha Tehsil Khawas District Rajouri has filed this habeas corpus petition through his copusin questioning the detention order bearing No.DMR INDEX 02 of 2021 dated 20.05.2021 slapped on him by respondent No.2 i.e. the District Magistrate Rajouri under Section 8 of the J&K Public Safety Act 1978. It is contended in the petition that the detenue has never committed any criminal anti national offence however he along with three other persons has been implicated in a false and frivolous case registered with Police Station Budhal Rajouri. It is submitted by learned counsel for the petitioner detenue that there was no danger to public order especially when the petitioner was already 2 WP(Crl) No.32 2021 in custody in FIR No.44 2021 registered with Police Station Budhal for the commission of offence punishable under Sections 295 A 429 IPC wherein no bail has been granted by the competent court of law till date and as such no situation arise for slapping the detention order on the detenue. It is further submitted that the material relied upon by the detaining authority i.e. the dossier the copy of FIR No.44 2021 the grounds of detention and the confidential reports submitted by District Special Branch Rajouri has never been supplied to the detenue or his brother. It is submitted that the detenue has made a representation on 31.05.2021 in absence of supply of above material but the same has not been decided by the respondents till date. Reply affidavit has been filed by respondents objecting the Heard learned counsel for parties considered their submissions and perused the record produced by learned counsel for the respondents. A bare perusal of the detention order reveals that the detenue has been placed under detention vide detention order No. No.DMR INDEX 02 of 2021 dated 20.05.2021 passed by District Magistrate Rajouri under Section 8 of Jammu and Kashmir Public Safety Act 1978 on the ground to maintain proper order harmony and to prevent violence of any kind in the district and also to prevent the detenue from acting in any manner which is highly prejudicial to the maintenance of public order. A bare perusal of record reveals that one Javed Manhas Sub Inspector No.876430 EXJ Police Station Rajouri has taken the custody of deteune on 22.05.2021 and as such executed the execution report to the detenue and handed over his custody to the Deputy Superintendent Central Jail Kotbhalwal Jammu on the same date. The execution report further reveals that the contents of detention warrant along with ground of detention was read over 3 WP(Crl) No.32 2021 to the detenue in English language and thereafter explained him in Pahari Language. It is contended that total eight number of leaves were handed over to detenue which include copy of detention warrant grounds of detentionand notice of detentionagainst proper receipt. On going through the record so produced it comes to the fore that the copy of dossier copy of FIR No.44 2021 and the confidential reports submitted by District Special Branch Rajouri bearing DD Report No.20 dated 14.05.2021 DD Report No.19 dated 17.05.2021 and DD Report No.10 dated 18.05.2021 of Police Post Khawas have not been supplied to the detenue. The failure on part of detaining authority to supply material relied at the time of making detention order against the detenue renders detention order illegal and unsustainable. While holding so support is drawn from law laid down in ThahiraHaris Etc. Etc.v. Government of KarnatakaUnion of v. Ranu Bhandari 2008 Cr. L. J. 4567) DhannajoyDass v. District Magistrate Sofia Ghulam Mohammad Bam v. State of Maharashtra &ors(AIR 1999 SC 3051) and Syed AasiyaIndrabi v. State of J&K &ors(2009 S.L.J 219) and Union of India v. Ranu Bhandariof the Constitution provides a precious and valuable right to a person detained under preventive detention law J&K Public Safety Act 1978 to make a representation against the detention. The detenu is held in custody on a mere suspicion that his apprehended activities may be prejudicial 4 WP(Crl) No.32 2021 to the maintenance of public order or security of the State. Article 22(5) Constitution of India and Section 13 of the Act thus makes it obligatory for Detaining Authority to provide detenu an earliest opportunity of making an effective and meaningful representation against his detention. The object is to enable the detenu to convince the Detaining Authority and Government as the case may be that all apprehensions regarding his activities are grossly misplaced and his detention is unwarranted. To make the Constitutional and Statutory right available to detenu meaningful it is necessary that detenu be informed with all possible clarity what is are apprehended activity ies that persuaded Detaining Authority to make detention order. A person of ordinary prudence would not be in a position to explain his stand in reply to the grounds of detention detailed by the detaining authority. The detenu has been kept guessing about the facts and events that weighed with detaining authority and prompted detaining authority to record subjective satisfaction regarding sufficiency of the material to warrant preventive detention of detenu. It is well settled law that even where one of grounds relied upon by Detaining Authority to order detention is vague and ambiguous Constitutional and Statutory right of detenu to make an effective representation against his detention are taken to have been violated. Reference in this regard may be made to law laid down in State of Maharashtra &ors v. Santosh Shankar Acharya case Chaju Ram v. State of J&K AIR 1971 SC 263 Dr.RamKrishan v. The State of Delhi &ors. AIR 1953 SC 318 MohdYousuf Rather v. State of J&K AIR 1979 SC 1925 and GhulamNabi Shah v. State of J&K &ors. 2005(I) SLJ 251. It is crystal clear that the relevant documents like copy of FIR copy of dossier and the copies of confidential reports relied upon by the respondents while issuing detention order have not been supplied to the 5 WP(Crl) No.32 2021 detenue. Therefore the violation of provisions of the Public Safety Act as well as Article 22(5) of the Constitution has been done by the respondents. Thus it is clear case of non supply of relevant material to the detenue to prevent the detenue from making an effective representation against his detention. For the foregoing reasons this petition is allowed and the impugned detention order bearing No. DMR INDEX 02 of 2021 dated 20.05.2021 passed by District Magistrate Rajouri is quashed. Respondents are directed to release the detenue namely Ali Hayder son of Abdul Aziz resident of Village Gundha Tehsil Khawas District Rajouri forthwith provided he is not required in any other case. The petition is accordingly disposed of on the above lines. Record so produced be returned to the respondents against proper Jammu 09.12.2021 Judge Whether the order is speaking Yes No Whether the order is reportable Yes No 