A single Bench of Justice Rahul Bharti while quashing the Preventive Detention has held that once a representation is made by the petitioner against the order of detention, the same is to be placed before the Advisory Board for its consideration when the case of petitioner was subjected to the opinion of Advisory Board.
The Petitioner (female) was detained on the ground that she was exploiting her gender to indulge in objectionable activities and serving as an informer of the terrorists, supplier of arms and ammunition to the terrorists, using social media as a tool for the nefarious and anti-national activities thereby posing a threat to public peace, tranquility and public order.
The petitioner through her father had made a representation before the detaining authority selling revocation of detention order on the ground that the material relied upon by the detaining authority has not been furnished so as to make an effective representation and also that the petitioner was informed the timeframe within which she could make the representation. The said representation was rejected by the detaining authority leaving the petitioner to represent before Home department but without forwarding the same to the government so as to place the same before Advisory Board.
The court noted that the Advisory Board while rendering its Opinion for confirmation of the detention was not even having due sensitivity to the gender of the petitioner as the pronouns used in the grounds of detention referred to the petitioner as ’He’ & ‘His’. The court observed that the Dossier submitted by Police and the Grounds of detention are both mirror images of each other with no difference in punctuation. Also that the representation was not placed before the Advisory Board for the sake of examining legality and validity of the process and purpose of Preventive Detention. The court held that failure to do the same by the detaining authority vitiates the Entire Preventive detention.
The Court further held that in the event a detenue comes to make a representation against his/her preventive detention to the detention order making authority, then not only the representation is to be considered at the earliest by the detention order making authority but also to be ensured by the said authority that the said representation is forwarded by the authority concerned to the government for the purpose of enabling the representation to be tabled before the Advisory Board when with respect to preventive detention of the detenue the case is put up for the opinion of the Advisory Board for earning a confirmation with respect to the process and purpose of preventive detention in reference.
The court also cautioned that the Onus is upon the Government to enquire from the Divisional Commissioner/District Magistrate passing the detention order as the case may, as to whether any representation has been submitted by a detenue against his/her detention before the officer passing the preventive detention order so as to enable the government to get the said representation accompanying the submission of case for the opinion of the Advisory Board. In case the Government fails to discharge the said onus and the representation made by the detenu to the preventive detention order making officer remains lying embedded as a piece of paper on the preventive detention file concerning the petitioner in the office of the Divisional Commissioner/District Magistrate concerned, then the omission is going to be very fatal to the very validity of the preventive order even if approved and/or confirmed by the Government and/or the Advisory Board as the said omission on the part of the detention making authority as well as the Government is incurable.
