Abid Ahmad Dar vs Union Territory Of Jk & Ors
2022 Latest Caselaw 2191 j&K/2

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       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                                       WP(Crl) 439/2022
                                                      Reserved on : 24.11.2022
                                                      Pronounced on: 13.12.2022


  ABID AHMAD DAR.
                                                                 .....Petitioner(s)

                           Through :- Mr. M. I. Qadri, Sr. Advocate with
                                          Mr. Owais Shafi, Advocate.

                  V/s

  UNION TERRITORY OF JK & ORS.                           .....Respondent(s)
                           Through :- Mr. Faheem Shah, G.A.

Coram: HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                                 JUDGMENT

1. In the instant Habeas Corpus petition, the petitioner has assailed the

detention order No. DMB/PSA/2022/32 dated 27.06.2022, passed by

respondent No. 2- District Magistrate, Budgam (for short 'the

detaining authority'), whereby one Abid Ahmad Dar S/O Noor

Mohd. Dar R/O Dalipora Chadoora, Budgam, (for short detenue), has

been detained under the provisions of J&K Public Safety Act, 1978.

2. Though the petitioner has challenged the detention order on various

grounds, but the main ground of challenge to the non-consideration of

the representations filed against the detention order. It is averred that

because of non-consideration of the representations, the detention order

is liable to be quashed. Copy of the representations having been

received by the respondents is annexed with the writ petition.

3. The respondents have filed their objections and have defended the order

of detention, stating therein that the order of detention was passed by the

detaining authority after being satisfied on the basis of the material

available including the dossier submitted by Senior Superintendent of

Police, Budgam, that it was necessary with a view to prevent the

detenue from acting in any manner prejudicial to the security of the

State to place the detenue under preventive detention. It is submitted

that the detention of the dentenu has been ordered strictly in accordance

with the provisions of J&K Public Safety Act, 1978 (for short 'the Act')

and the procedural safeguards prescribed under the provisions of the

Act, have strictly been followed in the instant case.

4. It is further stated that from the grounds of detention it would transpire

that the activities of the detenue are highly prejudicial to the security of

the State and, therefore, there was no option left to the detaining

authority, but to order detention of the detenue under the Act. It is also

submitted that the grounds of detention sufficiently connect the detenue

with the activities which are highly prejudicial to the security of the

State, as such, the detention of the detenu is legal.

5. With regard to the allegation of non-consideration of the detenu's

representations, it is stated in the counter affidavit that the detenue did

not make any representation in respect to his detention order.

6. I have heard learned counsel for the parties and perused material made

available including the detention record.

7. It is quite evident that representations have been made by the detenue

against his detention which have been received by the respondents, but

have not been considered till date, as the postal receipts placed on record

would show. In these circumstances, this Court is left with no option,

but to accept the stand of the petitioner that the detenue has made

representations against his detention, but the same has not been

considered. It is the bounden duty of the detaining Authority or the

Government, as the case may be, to consider the representation of the

detenue and pass appropriate orders thereon.

8. Article 22(5) of the Constitution of India, casts legal obligation on the

Government to consider the detenu's representation as early as possible.

There should be no slackness, indifference and callous attitude in

consideration of the representation of the persons who are detained. Any

unexplained delay would be breach of constitutional imperative and it

would render the continued detention of the detenu as illegal. Each

day's delay in dealing with the representation has to be explained and

the explanation offered must be reasonably indicating that there was no

slackness or indifference.

9. In Tara Chand vs State of Rajasthan and others, 1980 (2) SCC 321,

the Hon'ble Supreme Court has held that any inordinate and

unexplained delay on the part of the Government in considering the

representation renders the very detention illegal.

10.The Supreme Court in another case of Rahmatullah vs State of Bihar,

AIR 1981 SC 2069 has held that clause (5) of Article 22 by necessary

implication guarantees the constitutional right to a proper consideration

of the representation. The obligation of the Government to afford to the

detenu an opportunity to make representation is distinct from the

Government's obligation to refer the case of the detenu along with

representation to the Advisory Board to enable it to form its opinion and

send a report to the Government. Therefore, it is implicit in clauses (4)

and (5) of Article 22 that the Government, while discharging its duty to

consider the representation, cannot depend upon the views of the Board

on such representation. It has to consider the representation on its own

without being influenced by any such view of the Board. The Supreme

Court in the case of Kundanbhai Dulabhai Sheikh vs. District

Magistrate Ahmedabad and others, 1996 Crl.L.J 1981 quashed the

detention order only on the ground of delay in disposing of the

representation. Having gone through the observations of the Supreme

Court in the said case, I am of the considered view that the said decision

with all fours is applicable to the instant case. Therefore, the detention

order is liable to be quashed.

11.In view of the above settled proposition of law, I am of the view that

non-consideration of the detenu's representations constitutes violation of

the constitutional right guaranteed under Article 22 of the Constitution

and also exhibits failure of the Government to discharge its statutory

obligation/function. Therefore, for this reason alone, writ petition must

succeed.

12.Accordingly, the writ petition is allowed and the impugned detention

order No. DMB/PSA/2022/32 dated 27.06.2022. (supra) is quashed.

The Jail Superintendent concerned is directed to release the detenue

forthwith, if his detention is not required in connection with any other

criminal case pending against him.

13.Record be returned to the concerned against proper receipt.

(MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 13.12.2022 Abdul Rashid, PS

Whether the order is speaking : Yes/No Whether the order is reportable :Yes/No