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Synopsis

The High Court of Jammu & Kashmir and Ladakh has recently quashed an order for preventive detention, emphasising that the “failure of the government to communicate rejection of detenue’s representation in a time bound manner is sufficient to vitiate the detention order.”

The court, presided over by Justice Sanjay Dhar, was hearing a writ petition filed by Abdul Hameed Dar, who was detained under a preventive detention order issued by the District Magistrate, Bandipora, on December 30, 2022, under the Jammu & Kashmir Public Safety Act.

The petitioner, challenged the order, alleging that the grounds for his detention were vague, fabricated, and lacked any factual basis. Furthermore, it was asserted that he was denied a translated version of the supporting materials and that procedural safeguards were not followed.

Contrarily, the government (respondents) resisted the petition arguing that the detenue’s activities threatened state security and asserted that the detention order, grounds, and supporting materials were provided, explained to him, and his right to representation was conveyed. The respondents maintained that all statutory procedures and constitutional safeguards were duly followed, rendering the order valid and lawful.

The court analysed two key issues: the vagueness of allegations and the failure to promptly consider the detenue’s representation. Analysing the detention record, the court criticised the lack of material particulars in the grounds of detention. The absence of specific details—such as the locations, identities of alleged terrorists, and timelines regarding the detenue's alleged support activities—rendered the grounds vague. The court held that such vagueness prevented the detenue from effectively exercising his right to representation. “There has been violation of constitutional guarantees envisaged under Article 22(5) of the Constitution. The detention order, as such, is illegal and unsustainable,” the court noted.

Further scrutiny revealed that the detenue had submitted his representation in early February 2023, as evidenced by a postal receipt. However, the government only made a decision in April 2023, demonstrating undue delay.

Drawing from the Supreme Court’s verdict in Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur (2021), the court reiterated : “The purpose of furnishing the grounds of detention within a maximum period of ten days is to enable a detenue to make a representation against the order of detention at the earliest opportunity. Thus, a duty is cast upon the detaining authority or the government to consider the said representation at the earliest opportunity. Failure to decide the representation of a detenue within a reasonable time in an expeditious manner strikes at the valuable right of a detenue emanating from the provisions of Section 13 of the Jammu & Kashmir Public Safety Act.”

Holding the government accountable for the undue delay, the court stated : “This slackness on the part of respondents to take a decision on the representation of the petitioner renders the impugned order of detention illegal.”

Resultantly, the court quashed the detention order and ordered the detenue’s immediate release.

 

Cause Title: Abdul Hameed Dar v UT OF J&K & Another [WP(Crl) No.45/2023]

Appearance: Advocate B. A. Tak - for the Petitioner; and  Deputy Advocate General Mubashir Majid Malik - for the Respondents