Justice Ali Mohammad Magrey of the Jammu and Kashmir high court on Wednesday quashed the preventive detention of Masood Ahmad Bhat dated January 22. The court said the detenu, a resident of Chidder, Kulgam district should be released from preventive custody forthwith.

Although the judge added that since Bhat is also accused of a substantive offence in FIR No. 116/2018 under sections of Unlawful Activities (Prevention) Act (UAPA), is already in custody and has not applied for bail for that, he would, therefore, remain in custody unless granted bail for the UAPA offence.

What is remarkable, however, is that Justice Magrey found Bhat’s detention vitiated, in view of the settled position of law. Although Bhat’s detention predates the Centre’s controversial August 5 decision to revoke Jammu and Kashmir’s special status, and the subsequent clampdown in the state resulting in preventive detention of several political activists, the grounds cited to quash Bhat’s detention in Justice Magrey’s judgment could come to the rescue of other detainees, whose detention might be similar to that of Bhat.

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Bhat sought his release through his brother. Bhat challenged the order of his detention on the following grounds:

“a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, more so in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody;

b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;

c) that the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite for him before passing any detention order.”

Justice Magrey recorded his findings as follows:

Despite direction, the detention order was not produced.

In the absence of material, the detention order is passed on mere ipsi dixit (an assertion without proof) of detaining authority; therefore, the detention order is bad in law.

Justice Magrey added:

“The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore.”

Relying on a Supreme Court judgment

Justice Magrey relied on a Supreme Court judgment delivered in 1982. In Ibrahim Ahmad Batti v. State of Gujarat (1982), the apex court, relying on its earlier judgments in Khudiram Das v State of W. B. (1975) and Icchu Devi Choraria v. Union of India (1980) in paragraph 10 of the judgment, held:

“Two propositions having a bearing on the points at issue in the case before us, clearly emerge from the aforesaid resume of decided cases:

(a) all documents, statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention, and

(b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution.”

In the Khudiram case (supra), decided by Justice P.N. Bhagwati in 1974, the Supreme Court had explained what is meant by “grounds on which the order is made” in the context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

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In Smt. Icchu Devi Case (supra), also authored by Justice Bhagwati in 1980, the Supreme Court took the view that documents, statements and other materials referred to or relied upon by the detaining authority as grounds for detention must be made available to the detenu. The court held that the state’s obligation to provide copies of this material flowed directly from a detained person’s right to make a representation against his detention at the earliest opportunity – a right that cannot be meaningfully exercised without the grounds for his imprisonment being known to him.

Justice Magrey concluded:

“Examining the present case on the touchstone of the above settled position of law and perusal of record, the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material/documents, as referred to in the order of detention. On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, the detenu having been prevented from making an effective and purposeful representation against the order of detention.”

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