Non-Supply Of Material Considered By Detaining Authority In Forming Subjective Satisfaction Violative Of Detenue’s Rights U/A 22(5) Constitution: J&K&L HC
|The Jammu & Kashmir and Ladakh High Court held that non-supply of material considered by the Detaining Authority in forming its ‘subjective satisfaction’ to the detenue is violative of Article 22(5) of the Constitution.
The Court quashed the detention order while observing that the non-supply of material violates the rights of the detenue and would make the detention order unsustainable. The Bench noted that the offences alleged against the detenue in the FIRs were not of the nature that ordinary criminal law and the fact that he was admitted to bail, there was no ground to detain him under preventive law.
A Division Bench of Acting Chief Justice Tashi Rabstan and Justice M. A. Chowdhary observed, “All the documents have not been provided to the appellant-detenue in order to enable him to make an effective representation to the Government or Detaining Authority, as such, non-supply of material violates the rights of the appellant-detenue under Article 22(5) of the Constitution of India and would make the order unsustainable in the eyes of law.”
Advocate Shuja ul Haq appeared for the petitioner, while Advocate Faheem Nisar Shah represented the respondents.
The detenue challenged the decision of the Single Bench whereby the Habeas Corpus Petition, filed by the detenue was dismissed for the reason that the detenue allegedly indulging in criminal activities, which are prejudicial to the maintenance of public order, cannot take shelter behind nationalist activities in which he may have participated at some point of time in his career.
The High Court noted the grounds of detention, on which the detention order was based by the detaining authority, alleging that the detenue was deeply influenced by “radical ideology” from a young age and as a result came into contact with disgruntled elements of his area who encouraged him to indulge in “illegal and anti-social activities” posing a “direct threat to public order.”
The Court further noted the grounds which alleged that the detenue “got motivated and engaged in unlawful activities, gained confidence and quickly rose to the status of a well-known nuisance, troublemaker, vagabond, chronic street fighter, or miscreant; that the appellant-detenue did not mend his ways even though got more confidence and was found continuously involved in series of heinous criminal cases.”
The Court explained that the Detaining Authority was required to furnish to the detenue the grounds of detention, all the documents referred in the grounds of detention and all the material which the Detaining Authority has considered while framing its “subjective satisfaction.” The police report of the dossier must also to be provided. However, the Court noted that the material was not provided to the detenue.
“The grounds of detention also reveal that the allegations against the detenue in the grounds of detention with regard to offences also do not fall under the realm of public order as defined under Section 8(3) of the Act as there is no allegation against the appellantdetenue regarding his activities effecting public at large. The allegations may amount to law and order issue but he cannot be held to have disturbed the public order,” the Court remarked.
Consequently, the Court ordered the release of the detenue while observing, “The offences as alleged in the FIRs are not of the nature that ordinary criminal law cannot deal with those offences and the fact that he was admitted to bail in these FIRs is no ground to detain him under preventive law and, thus, impugned detention of the detenue is unsustainable under law. In the present case, the ordinary law of land was sufficient to deal with the situation.”
Accordingly, the High Court allowed the petition.
Cause Title: Aqib Ahmad Renzu v. Union Territory of J&K & Ors.