The Jammu and Kashmir High Court has held that non-communication of the fact that the detenu has a right to make an effective representation to the Detaining Authority against the detention order so long as the order of detention has not been approved by the Government constitutes a violation of the valuable right of the detenu under Article 22(5) of the Constitution.
A single judge bench of Justice Sanjay Dhar noted, “The respondents have not adhered to the legal and constitutional safeguards while passing the impugned detention order against the detenu.”
The petition has been filed by Nazir Ahmad challenging an order of the District Magistrate placing him under preventive detention directing his lodgement in Sub Jail, Hiranagar alleging that the
“Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are a mere reproduction of the dossier.”
The petitioner further argued that “Constitutional and Statutory procedural safeguards have not been complied with in the instant case”. “Inasmuch as the whole material relied upon by the detaining authority has not been supplied to the detenu and that the translated version of the documents/grounds of detention in Gojri language has not been provided to the detenu who is an illiterate person,” petitioner added.
However, the respondents contended that “the contents of the documents were read over and explained to the detenu in the language understood by him.”
Whereas, the bench directed the detenu to be released from preventive detention stating that “the respondents have not adhered to the legal and constitutional safeguards while passing the impugned detention order against the detenu.”