Srinagar: “A detenue has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay,” the J&K High Court ruled on Monday while quashing three Public Safety Act (PSA) detention orders.
The court while quashing the detention of Rasik Ahmad Nengroo stated that perusal of the order of detention reveals that only two FIRs, that is, FIR No 49/2018 and 09/2017, were submitted before the detaining authority and these two FIRs comprise of four leaves.
“Even if it is assumed that seven leaves were handed over to the petitioner, then only these two FIRs that is FIR No 49/2018 and 09/2017 were furnished to the petitioner and FIR No 39/2018 was not furnished to the petitioner, so it disabled the petitioner to make effective representation against the order impugned. Failure on the part of the respondents to supply the whole material relied upon by him, while passing the detention order renders it illegal,” the court held.
The court while giving reference to Supreme Court Judgement in case of Thahira Haris v. Govt. of Karnataka noted that the Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue.
“He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of 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,” the court said.
In the case of Ghulam Hassan Wagay, the court overturned the order of detention on the same principles as held above.
The court further recorded in this case, which was represented by Advocate Wajid, that the delay in passing the detention order after 15 months had vitiated the detention itself.
“The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case,” the court said.
The court said, “It is incumbent on the part of the court to scrutinise whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned.”
The court recorded that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside.
It was held in Javid Ahmad Wani’s case that in absence of constitutional safeguards, which are the right of a detenue, not provided to the detenue renders the detention order illegal and hence is to be quashed.