Jammu & Kashmir High Court - Srinagar Bench

Wp(Crl) No. 81/2022 vs Union Territory Of J&K & Anr on 13 May, 2022

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                        WP(Crl) No. 81/2022
                                           Reserved on: 11.05.2022
                                           Pronounced on: 13.05.2022
Mohammad Jalal Sheikh

                                                 ...Petitioner(s)

           Through: Mr. Mir Suhail, Advocate.

                              Vs.
Union Territory of J&K & Anr.
                                                  ...Respondent(s)

           Through: Mr. Sheikh Feroz, Dy.AG vice Mr. Sajad Ashraf,GA.


CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                            JUDGMENT

1. In exercise of powers under Section 8 of the Jammu & Kashmir

Public Safety Act, 1978 (for short 'the Act'), District Magistrate

Srinagar has passed the detention Order No. DMS/PSA/143/2021 dated

28.02.2022 (for short 'impugned order'), in terms whereof the detenue-

Mohammad Jalal Sheikh was ordered to be detained under the Act.

2. The detention of the detenue has been challenged inter alia on the

grounds that the allegations leveled in the grounds of detention are

vague, non-existent and no prudent man can make a representation

against such allegations and passing of detention on such grounds is

unjustified and unreasonable. It is the contention of the detenue that he

was already on bail in FIR No.19/2022 and the detaining authority

despite having knowledge about the bail has not spelled out the

compelling reasons to pass the detention order after delay more

particularly given the fact that the detenue was at large and no illegal Page |2

activity was attributed to him, as such, the detention order suffers from

non-application of mind on the part of the Detaining authority, and

deserves to be quashed. Furthermore, it is contended that the relevant

material has not been furnished to the detenue and whatever material

was furnished to him, it was not possible to make a purposeful

representation, thus, the right of the detenue under Article 22 of the

Constitution stands violated. His further contention is that he has filed

representation, post-detention, but the same 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 is annexed with the writ petition.

3. Respondents have filed their reply affidavit, wherein it is stated 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 detenue from acting in any manner

prejudicial to the maintenance of security of the State to place the

detenue under preventive detention. It is submitted that the detention of

the detenue has been ordered strictly in accordance with the provisions

of the Act and the procedural safeguards prescribed under the

provisions of the Act and the rights guaranteed to the detenue 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

detenue 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 detenue under the Act.

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4. With regard to the allegation of non-consideration of the detenue's

representation, in the reply affidavit, there is no mention that the

detenue has filed any representation.

5. Heard learned counsel for the parties and perused the material on record

including the detention record.

6. It has been contended on behalf of the petitioner that representation on

his behalf had been submitted to detaining authority. Despite pleading

specifically by the detenue that he has submitted representation, post-

detention, respondents except mentioning that the detenue was also

informed about his right to submit representation against his detention,

has not responded as to whether any representation was filed and how

the same was dealt with.

7. Perusal of the detention record does not reveal or indicate anything with

regard to receipt or disposal of the representations. It is thus, evident

from the pleadings of the respondents as well as detention record that

representation submitted on behalf of the detenue has not been

considered by them so far.

8. Admittedly, as is evident from the copy of representation, placed on

file, the detenue had filed the representation against his detention on

12.03.2022 to the Detaining authority and the same has not been

considered by the respondents till date, inasmuch as, there is no mention

with regard to the said representation filed by the detenue, either in the

reply affidavit or in the detention record. As such, this Court is left with

no option but to accept the stand of the detenue that he has moved

representation against his detention, but the same has not been

considered.

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

Government to consider the detenue's representation as early as

possible. It is obligatory for the detaining Authority or the Government,

as the case may be, to consider the representation of the detenue and

pass appropriate orders thereon. There should be no slackness,

indifference and callous attitude in consideration of the representation

of a person who is detained. Any unexplained delay would render the

continued detention of the detenue as illegal. Every day 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.

10. Hon'ble Supreme Court in the case "Tara Chand vs State of

Rajasthan & Ors., 1980 (2) SCC 321" has held that any inordinate and

unexplained delay on the part of the Government in considering the

representation renders the very detention illegal.

11.The Supreme Court in another case "Dr. Rahmatullah vs State of

Bihar, AIR 1981 SC 2069" has held that clause (5) of Article 22 of the

Constitution of India by necessary implication guarantees the

constitutional right to a proper consideration of the representation. The

obligation of the Government to afford to the detenue an opportunity to

make representation is distinct from the Government's obligation to

refer the case of the detenue along with representation to the Advisory

Board to enable it to form its opinion and send a report to the

Government. Para-4 of the said judgment will be advantageous to be

quoted hereunder:-

"4.The normal rule of law is that when a person commits an offence or a number of offences, he should Page |5

be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub- Article (5) of Article 22 reads:

'When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.' This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenue is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution.

The non-consideration or an unreasonably belated consideration of the representation tantamount to non- compliance of Sub-Article (5) of Article 22 of the Constitution."

12.Therefore, it is implicit in clause (5) of Article 22 of the Constitution

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.

13. The Supreme Court in the case "Kundanbhai Dulabhai Sheikh vs.

District Magistrate Ahmedabad & Ors. 1996 Crl.L.J 1981" quashed

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

representation.

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14. Viewed thus, in the context what has been observed, analyzed and

considered in the preceding paras, the instant petition is allowed and