A Habeas Corpus petition was filed in the J&K High Court by a detainee questioning his detention that was ordered by the District magistrate, Pulwama.
Brief Facts of the Case:-Shahbaz Ahmad Bhat Versus State of J and K and Others
The petitioner was detained under Section 8 of the J&K Public Safety Act, 1978 by the order dated 10.08.2019 passed by the District magistrate, Pulwama.
He was detained because he, along with his associates, had destroyed government property.
However, the petitioner has alleged that particulars of his associates have not been mentioned in the affidavit filed by the respondent. It was also alleged that the respondents have not mentioned the date or time when the petitioner and his associates damaged the government property. Copies of the FIR and record of statements were also not provided to the petitioner.
The petitioner further stated that as no information has been provided to him, he is unable to make an effective representation against his detention. The grounds of arrest are also challenged because they state that four FIRs have been filed against him, but his name is only mentioned in one FIR.
Arguments raised by the counsel of the petitioner:-
The counsel argued that the respondents had not informed the petitioner about which authority he should approach to represent his case. The respondents failed to inform the petitioner that he can make a representation to the detaining authority as well which amounts to a violation of Section 13 J&K Public Safety Act, read with Article 22(5) of the Constitution of India.
Contentions of the Respondents
Learned counsel for the respondents has stated that all technical requirements were complied with including Section 13 J&K Public Safety Act.
Reasoning of the HighCourt
A reference was made to Kamleshkumar Ishwardas Patel v. Union of India where the Supreme Court held that till the State Government approves the detention, the detaining authority can entertain representation from the detainee. It was further held that if the detaining authority fails to inform the detainee that representation can be made to the detaining authority, it will be a violation of Article 22(5) of the Constitution of India.
In various judgements like ThahiraHaris Etc. Etc.v. Government of Karnataka, Sofia Ghulam Mohammad Bam v. State of Maharashtra & Ors and Union of India v. Ranu Bhandari the Courts have reiterated the fact that if a detaining authority fails to supply material relied on for detention to the detainee, then the detention order is illegal and unsustainable.
The High Court observed that Article 22(5) of the Constitution provides a precious and valuable right to a person detained under preventive detention law – J&K Public Safety Act 1978, to make a representation against his detention. The provision helps a detainee explain why he should be detained to the detaining authority if the opportunity to explain is not provided to the detainee then its a violation of the detainee’s rights.
Further the High Court observed that the respondents have admitted that relevant documents like copies of FIRs, the statement recorded as per Section 161 Cr.P.C, dossier etc., relied upon while issuing detention orders, have not been supplied to the detenue. The Court held that this was a violation of the Public Safety Act as well as Article 22(5) of the Constitution.
The Decision of the High Court
After going through the contentions of both the parties, various Court Judgments and facts of the case, the High Court held that the respondents did not supply essential documents to the petitioner so that the petitioner could not make an effective representation against his detention.
The respondents were directed to release the detainee immediately and the order dated 10.08.2019 passed by the District Magistrate, Pulwama was quashed.
Title: Shahbaz Ahmad Bhat Versus State of J and K and Others
Case No. : WP(Crl) No.394/2019
Date of Order: 09.10.2020
Coram: Hon’ble Justice Tashi Rabstan
Advocates: Mr. Aamir Latoo for the petitioner ; Mr. Mir Suhail for the respondents