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Saturday, October 24, 2020

Gujarat: HC lays down guidelines to issue preventive detention orders

A division bench of the high court laid down the guidelines, in an order dated October 7, while overruling a single judge’s decision to uphold preventive detention orders against a man by the Rajkot district magistrate in May.

By: Express News Service | Ahmedabad | October 14, 2020 12:49:02 am
Gujarat HC, Gujarat preventive detention orders, Ahmedabad news, Gujarat news, Indian express newsThe division bench found that “it cannot be said the grounds of detention disclose the grounds and reasons which weighed and considered by the detaining authority for exercising powers...”

The Gujarat High Court has laid down a set of guidelines with respect to issuance of preventive detention orders by state government authorities.

A division bench of the high court laid down the guidelines, in an order dated October 7, while overruling a single judge’s decision to uphold preventive detention orders against a man by the Rajkot district magistrate in May.

Imran Kataria, the detainee, had appealed against an order of Justice AC Rao, where the latter upheld the Rajkot district magistrate’s decision to take Kataria into preventive detention custody.

In the appeal before the division bench, Kataria submitted that of the four criminal case FIRs filed against him at Gondal city that the district authorities had relied upon to take him into custody, he had already been acquitted by a court in one of them. The division bench thus observed that there was “non application of mind” in issuance of preventive detention orders.

Further, the division bench found that “it cannot be said the grounds of detention disclose the grounds and reasons which weighed and considered by the detaining authority for exercising powers…”

Observing that “matters relating to preventive detention should not be decided in a slip-shod manner,” and that personal liberty of an individual is of paramount importance, the bench quashed Kataria’s preventive detention orders.

Meanwhile, the court concluded its order with a set of guidelines that the state government and detaining authorities may follow to exercise its powers of preventive detention judiciously.

The bench led by Chief Justice Vikram Nath also directed the registry that the judgment copy be circulated to the principal secretaries of the Home and the Revenue departments with the latter expected to circulate it further to district officials.

The guidelines include conveying detention order in a language comprehensible to the detainee, specific grounds of such an order with each separately and distinctly mentioned, documents relied upon for each of these grounds with all details as well as furnishing these documents along with the order.

The bench also laid down that if the order of detention is challenged, the courts “shall have to independently consider each ground, to ascertain on each ground whether the order is sustainable or not…” The court also laid down that the government shall place all documents concerning the detention orders along with representation by detente, if one is made, to the Advisory Board within three weeks from the date of the detention order.

The Advisory Board will consider all the materials placed before it, and if the person concerned desires to be heard, after hearing him in person, it will send its report to the Government within seven weeks from the date of detention of the person concerned.

In case the detainee’s representation was not considered by the advisory board, the government will consider the same, before passing any order of confirmation on the preventive detention order. “Therefore, it is mandatory that appropriate Government shall consider the representation of the detenue, at least once at any stage before passing the final order of confirmation,” the bench ruled.

If any subsequent order of detention has to be passed, after an order has been passed once, “it shall be by a separate order on fresh grounds after again following the procedure, but not on the grounds on which earlier order was passed,”the court stated, adding that the detaining authority’s claim occurred privilege to issue such orders “should be meaningful and not an eye wash or mere mechanical exercise.”

For the sponsoring authority, the court mandated that it make “true, full and correct disclosure of all relevant facts relating to the detenue before the Detaining Authority…If the detenue has been acquitted in any of the cases relied upon then the Sponsoring Authority owes a duty to bring such fact to the notice of the Detaining Authority with the copy of the judgment and order passed by the Competent Court.”

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