Detention Order Can’t be Passed Without Application of Mind

In the instant case, the Divisional Commissioner Kashmir had ordered the detention of one Parvaiz Ahmad Malik under provisions of Narcotic Drugs and Psychotropic Substances Act, 1988.

As per the petitioner, his detention was ordered mechanically without any application of mind.

It was further stated that Constitutional and Statutory procedural safeguards were not complied with and the grounds on which the petitioner was detained were vague.

Counsel also argued that the material on which the detention order was passed was not supplied to the petitioner, and thats the reason why he was unable to make an effective representation.

It was also argued that the Detaining Authority does not have the power to pass a composite order of detention based on commissions of acts within the meaning of the NDPS Act, 1988

Hon’ble Judge observed that the prosecution had not bought anything on record to suggest that the petitioner has been supplied with material that formed the basis of grounds of detention.

It was also observed that the Court had not been supplied with the detention record, which ideally should contain grounds of detention. 

The Court also stated that effective representation by a detainee was a vital constitutional safeguard against preventive detention.

When material related to grounds of detention are not supplied to a detainee, then the person will not be able to make a proper and effective representation.

It was further observed that in the instant case as no material was supplied to the petitioner, the detention was 

Detention Order Unsustainable in law.

On the argument of the petitioner’s counsel that there were no compelling reasons for the detaining authority to pass the order of detention against the petitioner because he was already implicated in various FIRs, the Court agreed with the contention.

It held by J&K High Court that as the detaining authority had referred to incidents that occurred two years ago, the order should not have been passed. 

The petition was allowed by the Hon’ble Court, and the authorities were directed to release the detainee if he was not required in another case.

Case Details:-

Title: Parvaiz Ahmad Malik Vs. UT of J&K & Ors

Case No. WP(Crl.) No.57/2020

Date of Order: 15.10.2020

Coram: Hon’ble Justice Sanjay Dhar

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