Jammu & Kashmir High Court - Srinagar Bench
Aijaz Ahmad Dar vs Ut Of J&K & Another on 3 March, 2021
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 17.02.2021
Pronounced on:03.03.2021
WP(Crl) No.61/2020
Aijaz Ahmad Dar ...Petitioner(s)
Through: -Mr. Hamza Prince, Advocate.
Vs.
UT of J&K & another ...Respondent(s)
Through: -Mr. Mir Suhail, AAG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1) Challenge in this petition is to order No.DMB/PSA/ 10
of 2020 dated 09.04.2020, issued by District Magistrate,
Budgam-respondent No.2 herein, whereby Aijaz Ahmad Dar
S/o Ghulam Mohammad Dar R/o Nasrullapora, Budgam
(hereinafter referred to as the detenue), has been placed
under preventive detention and lodged in Central Jail,
Srinagar.
2) The petitioner's case, as set out in the petition, is that
the detenue, without any justification and cause, was
implicated in FIR No.53/2020 and while in custody in the
said case, the detenue came to be shifted to preventive
custody in terms of the impugned order. The respondents
MOHAMMAD ALTAF BHAT
are stated to have violated the procedural safeguards,
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inasmuch as the petitioner was not informed about his right
to make a representation against the order of detention
before the detaining authority. It has been further contended
that the detenue was not furnished the material relied upon
by the detaining authority in passing the impugned order of
detention, thereby depriving the detenue of his
Constitutional and Statutory rights. Grounds of detention
are stated to be vague, baseless, non-existent and
unfounded.
3) The respondents, in their counter affidavit, have
disputed the averments made in the petition and insisted
that the activities of detenue are highly prejudicial to the
maintenance of public order. It is pleaded that the detention
order and grounds of detention along with the material in
support thereof were handed over to the detenue and the
same were read over and explained to him. The detention
order is stated to have been confirmed by the Government in
terms of Section 17 (1) of the J&K Public Safety Act, vide
order No.Home/PB-V/1233 of 2020 dated 26.05.2020. It is
averred in the counter affidavit that the respondents have
complied with all statutory, constitutional provisions and
followed all the requisite formalities and have not violated
any of them and that the order of detention has been issued
validly and legally. In support of the contentions raised in
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judgments of the Supreme Court in Haradhan Saha v. State
of W. B, (1975) 3 SCC 198 and The Secretary to
Government, Public (Law and Order-F) and another v.
Nabila and another, (2015) 12 SCC 127. The respondents
have also produced the detention record to lend support to
the stand taken in the counter affidavit.
4) I have heard learned counsel for the parties and
perused the material available on record.
5) A perusal of the detention record reveals that the
detaining authority vide its communication bearing
No.DMB/PSA/2020/10 dated 09.04/202, forwarded the
order of detention and the grounds of detention to the
petitioner and informed him that he has a statutory right to
make representation against the said detention order to the
Government. This clearly shows that the detaining authority
has failed to inform the detenue about his independent right
to file representation against his detention to the detaining
authority while informing him about his right to file a
representation against the detention order to the
Government.
6) As already noted, the impugned detention order was
passed on 09.04.2020 and as per the detention record, the
same was executed on 11.04.2020. The detention record
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further shows that the order of detention was approved by
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the Government on 15.04.2020. Thus, until the said date
i.e. 15.04.2020, the detaining authority, in terms of Section
21 of the General Clauses Act, was empowered to revoke the
order of detention but because the petitioner/detenue was
not informed by the respondents about his right to make a
representation to the detaining authority, obviously he
could not make a representation to the detaining authority,
thereby depriving him of a vital constitutional/statutory
right.
7) In my aforesaid view, I am fortified by the judgment of
this Court in Tariq Ahmad Dar v. State of J&K & Ors. LPA
No. 43/2017, 2017 (II) S.L.J 665 (HC), wherein a Hon'ble
Division Bench of this Court has, while relying upon the
Kamlesh Kumar Ishwardas Patel v. Union of India, (1995)
4 SCC 51, observed as under:
"15. From a reading of the said decision, it is
abundantly clear that non-communication of the
fact that the detenu can make a representation to
the Detaining Authority, till the detention order is
not approved by the Government, would constitute
an infraction of a valuable Constitutional right
guaranteed under Article 22(5) of the Constitution
of India as also of the right under Section 13 of
the Jammu and Kashmir Public Safety Act, 1978.
Failure of such non-communication would
invalidate the order of detention.
16................
17. In view of the foregoing, we need not to
consider any of the other pleas sought to be
raised by the learned counsel for the appellant,
inasmuch as the detention order has been
invalidated because of non-communication of the
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fact that the detenu could make a representation
to the Detaining Authority. The detention order
having become invalid, the detenu is liable to be
released forthwith insofar as this detention order
is concerned."
11. The aforesaid ratio is applicable to the facts of the
instant case on all fours. Thus, it can safely be stated that
the respondents by not informing the petitioner about his
right to make a representation to the detaining authority
against the impugned order of detention, are guilty of
committing infraction of a Constitutional right guaranteed to
the petitioner under Article 22(5) of the Constitution and the
statutory right guaranteed to him under Section 13 of the
J&K Public Safety Act. The impugned order of detention is,
therefore, rendered invalid and unsustainable in the eyes of
law.
8) For the reasons discussed above, the petition is
allowed and the impugned detention order is quashed. The
detenue is directed to be released from the preventive
custody forthwith provided he is not required in connection
with any other case.
(Sanjay Dhar)
Judge
Srinagar
03.03.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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