Preventive Detention- Inclusion Of A Vague Ground Among Other Clear And Definite Grounds Is Violation Of Article 22: J&K&L HC
The Jammu & Kashmir and Ladakh High Court, at Srinagar recently while quashing a detention order and directing the detenu to be released, has observed that inclusion of non-existent, obscure or vague grounds among other relevant, clear and definite grounds in the detention order violates two sets of imperative rights, and in either case is an infringement of constitutional rights of the detenu entitling him to approach the Court for relief.
The two sets of rights were that of the Constitutional imperatives of Article 22(5) of the Constitution of India imposing a dual obligation on the detaining authority making the order of preventive detention, to communicate the grounds for detention to the detenu at the earliest, and the opportunity to make a representation.
Justice Vinod Chatterji Koul observed, “The inclusion of an irrelevant or non-existent ground, among other relevant grounds, is an infringement of the first of the rights and the inclusion of an obscure or vague ground, among other clear and definite grounds, is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenu entitling him to approach the Court for relief. The reason why the inclusion of even a simple irrelevant or obscure ground, among several relevant and clear grounds, is an invasion of the detenu’s constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds, and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. Even if one of the grounds or reasons, which led to the subjective satisfaction of the detaining authority, is non-existent or misconceived or irrelevant, the order of detention would be invalid”.
Advocate Mansoor Ah Mir appeared for the petitioner, Government Advocate Fameem Ahmad Shah appeared for the respondent.
In the present matter, the petitioner challenged an order passed by the District Magistrate, Budgam (the detaining authority) has been placed under preventive detention with a view to prevent him from indulging in activities which are prejudicial to the security of the Union Territory and, therefore, a threat to the security of Union Territory of J&K.
The petitioner had contended that the allegations made in the grounds of detention are vague and indefinite and no prudent man can make an effective representation against these allegations as there was nothing to establish his association inasmuch as there are no particulars of persons with whom he is alleged to have an association with or to whom allegedly provided support, food, shelter. Further that there was no mention of any particular date to reflect any clear-cut prejudicial activity against detenu.
It was also argued that the detenu has no criminal antecedents regarding any prejudicial activity, and that there was no compelling reason for detaining authority to pass the impugned detention order. The detenu further alleged that he was not provided with the materials relied upon by detaining authority.
However, the respondents in their reply affidavit, submitted that the activities indulged in by detenu are highly prejudicial to the security of the Union Territory and, therefore, his remaining at large is a threat to the security of Union Territory of J&K. Further refuted the factual averments that detenu was not supplied with relevant material. While insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant.
Consequentially the bench thus observed, “From perusal of above quoted observations of the Supreme Court, it is crystal clear that grounds of detention and dossier, if in similar language, go on to show that there has been non-application of mind on the part of detaining authority. As already noted, in the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar wording which shows that there has been non-application of mind on the part of the detaining authority. The impugned order of detention is, therefore, unsustainable in law on this ground alone”.
Cause Title: Fayaz Ahmad Wani V. Union Territory Of J&K And Ors.
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