Musaib Ashraf Bangroo vs Ut Of Jammu And Kashmir And Ors
2022 Latest Caselaw 38 j&K/2

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                    WP(Crl) 211/2021

                                                    Reserved on : 27.12.2021
                                                    Pronounced on: 03.02.2022

Musaib Ashraf Bangroo
                                                                 .....petitioner(s)

                         Through :- Mr. M.A.Qayoom, Advocate


                V/s

UT of Jammu and Kashmir and ors                      .....Respondent(s)
                     Through :- Mr. Sajad Ashraf, G.A.


Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                            JUDGMENT

1 In this petition, the petitioner (hereinafter referred to as 'the

detenu') through his father Mohammad Ashraf Bangoo has assailed his

detention ordered by respondent No.2 (District Magistrate, Srinagar)

(hereinafter referred to as 'the detaining authority') vide order

No. DMS/PSA/69/2021 dated 20.10.2021.

2. Though the detenu has challenged the detention order on

several grounds, but the main ground is that his representation filed against

his detention has not been considered till date. It is submitted that because

of non-consideration of his representation, the detention order slapped upon

him is liable to be quashed. Copy of the representation 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 contending 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, Srinagar that it was necessary with a view to prevent the detenu

from acting in any manner prejudicial to the security of the State to place

the detenu 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 and the right

guaranteed to the detenu under the Constitution have strictly been followed

in the instant case. It is further submitted that the grounds of detention

transpire the activities of the detenu which, on the face of it, 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 detenu under the

Act. It is then submitted that the grounds of detention sufficiently connect

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

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

4. With regard to the allegation of non-consideration of the

detenu's representation, in the reply affidavit, there is no mention that the

detenu has filed any representation.

5. This Court, after hearing learned counsel for the parties and

while reserving the matter for judgment on 27.12.2021, directed

Mr. Ashraf, learned Government Advocate to produce the detention record.

In compliance to the said direction, he has produced the scanned detention

record.

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

material on record including the detention record.

7. Admittedly, as is evident from the copy of representation

which has been received by the respondents, the detenu had filed the

representation against his detention and the same has not been considered

by the respondents till date, inasmuch as, there is no mention with regard to

the said representation in the objections filed by the respondents. In these

circumstances, this Court is left with no option, but to accept the stand of

the petitioner that he has moved representation 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 detenu and pass appropriate orders thereon.

6. 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. Everyday 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.

7 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.

9. 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

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

view that non-consideration of the detenu's representation constitutes

violation of the constitutional right given under Article 22 of the

Constitution and failure of the Government to discharge its stastutory

function. Therefore, for this reason alone, writ petition must succeed.

Accordingly, the writ petition is allowed and the impugned detention order

dated 20.10.2021 (supra) is quashed. The Jail Superintendent concerned is

directed to release the detenu forthwith, if his detention is not required in

connection with any other criminal case pending against him.

Record be returned to the concerned.

                                                       (SANJEEV KUMAR)
                                                            JUDGE
Srinagar
03.2.2022
Sanjeev PS         Whether the order is speaking : Yes
                   Whether the order is reportable :Yes/No