Srinagar, Dec, 10: The High Court of Jammu & Kashmir and Ladakh observed that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him.
The court observed it while overturning the detention orders against four persons, who were booked under Public Safety Act (PSA), and ordered for their release.
The court of Justice Javed Iqbal Wani striked down the detention orders of Mudasir Ahmad Bhat of district Pulwama Yasir Majeed Mir of Anantnag.
While Justice Ali Mohammad Magrey quashed the detention orders against Bashir Ahmad Beigh of Shirpora Chandoosa, district Baramulla, and Hilal Ahmad Dar resident of Drabgam Rajpora, district Pulwama.
Justice Javed Iqbal while perusing the material of both the cases on record noted that the detention record of the detenues does not indicate that copies of statements recorded under Section 161 Cr.P.C. in FIR's and other material collected in connection with investigation of the cases, was ever supplied to detenues.
"Even a copy of dossier has not been furnished to detenues on the edifice thereof, impugned detention order has been issued," the court said.
Citing Supreme Court directives of various cases, Justice Javed Iqbal recorded that a detenu can make effective representation against his detention order only after he's supplied with the material by the detaining authority.
"It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the government that their apprehensions vis-à-vis his activities are baseless and misplaced," the court said.
The court said that if detenu is not supplied the material, on which detention order is based, he will not be in a position to make an effective representation against his detention order.
It recorded that failure of supplying all material to detenue infringes the constitutional right of the detenu guaranteed under Article 22 (5) of the Constitution of India.
"Failure on the part of detaining authority to supply material, relied at the time of making detention order to detenu, renders detention order illegal and unsustainable," Justice Wani held.
Meanwhile, quashing the detention orders of two, Justice Magrey also noted that the detenues were not supplied the materials relied upon by the detaining authority.
"The detenues were provided material in the shape of grounds of detention with no other material/documents, as referred to in the order of detention," Magrey said.
Justice Magrey further said that on these counts alone, the detention of the detenues is vitiated, the detenues having been prevented from making an effective and purposeful representation against the order of detention.
Allowing the pleas of four, the court directed the respondents to release the detainees forthwith from preventive custody unless they are required in any other case.