Jammu & Kashmir High Court - Srinagar Bench
Imran Qadir vs U.T. Of J&K And Another on 7 April, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 250/2022
Reserved on : 31.03.2023
Pronounced on: 07.04.2022
Imran Qadir .... Petitioner (s)
Through:- Mr. N. A. Ronga, Advocate
V/s
U.T. of J&K and another .....Respondent(s)
Through:- Mr. Sajjad Ashraf, GA
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. This petition has called into question the detention Order no.
DMS/PSA/49/2022 dated 18.04.2022 passed by the District Magistrate,
Srinagar, detaining the detenue, namely, Imran Qadir S/o Ghulam Qadir
Hazari under Section 8 of the Public Safety Act to prevent him from
acting in any manner prejudicial to the security of the UT. This order of
detention has been questioned by the detenue through his mother.
02. The detenue challenges the order of detention on the ground that
(i) the allegations mentioned in the grounds of detention have no nexus
with the detenue and have been fabricated to justify his detention; (ii) the
grounds on which the Detaining Authority has derived its satisfaction are
vague, obscure, ambiguous and are not connected with the detenue and, as
such, no effective representation can be made against these allegations.
(iii) the detenue was already in custody when the detention order was
passed and the detaining authority has not spelled out any reason for
detaining the detenue; (iv) all the material relied upon by the Detaining
Authority, while passing the order of detention has not been supplied to
the detenue, thus, the detenue has not been able to make an effective
representation.
03. Mr. Sajjad Ashraf, learned GA has filed the counter affidavit on
behalf of the respondents and has also produced the record of detention.
04. Learned counsel for the respondents submits that the grounds of
detention are precise and there is no vagueness in the grounds of
detention. The detaining authority has clearly applied its mind before
passing the order of detention as the activities of the detenue were
highly prejudicial to the public order. The grounds of detention were
handed over to the detenue and the same were read over and explained to
him in the language he understand. It is submitted that all the statutory
requirements have been fulfilled and complied with by the detaining
authority.
05. Heard learned counsel for the parties and perused the record.
06. Perusal of the record reveals that the detenue had made a
representation to the detaining authority on 28.04.2020. This
representation of the detenue has not been considered by the detaining
authority till date.
07. Article-22(5) of the Constitution of India provides that when any
person is detained, the Detaining Authority shall, as soon as may be,
communicate to the detenu, the grounds on which the detention order has
been made and shall afford him an earliest opportunity of making an
effective representation against the order of the detention. The detenue by
filing a representation had approached the authority concerned but the
respondents have not considered his representation till date, thus, resulting
in infraction of this valuable right.
08. The Hon'ble Apex Court in "Sarabjeet Singh Mokha vs. The
District Magistrate, Jabalpur and others", SCC Online SC 1019, has
held as under:
"....Article 22(5) reflects a keen awareness of the framers of
the Constitution that preventive detention leads to the
detention of a person without trial and hence, it incorporates
procedural safeguards which mandate an immediancy in
terms of time. The significance of Article 22 is that the
representation which has been submitted by the detenu must
be disposed of at an early date. The communication of the
grounds of detention, as soon as may be, and the affording
of the earliest opportunity to submit a representation against
the order of detention will have no constitutional
significance unless the detaining authority deals with the
representation and communicates its decision with
expedition."
09. In "KundanbhaiDulabhai Shaikh vs District Magistrate,
Ahmedabad and others", 1996 Cr.LJ 1981, the Court has quashed the
detention order only on the ground of delay in disposal of the
representation. It was held as under:
"...it was provided that inordinate and unexplained delay in the
disposal of representation would make the continued detention of a
person, illegal and unconstitutional. In Devi Lal Mahto v. State of
Bihar &Anr., AIR (1982) SC 1548, the continued detention was held
to have become bad on account of the indifferent attitude of the
Government in not attending to the representation for about 10
days."
10. This apart, the detenue has submitted that all the material relied
upon by the Detaining Authority has not been provided to him. The
detenue has only received the grounds of detention/Notice/letter addressed
to the detenu consisting of (six) leaves, as per the receipt of grounds of
detention but the dossier and other material relied upon by the Detaining
Authority has not been provided to the detenue. The detention order dated
18.04.2022 reflects that the same is based on the dossier placed before the
Detaining Authority by the Senior Superintendent of Police, Srinagar. The
detenue was thus prevented from making an effective representation due
to non-supply of entire material relied upon by the Detaining Authority
while arriving at a subjective satisfaction. In order to make an effective
representation, the detenue must know, what weighed with the Detaining
Authority while passing the order of detention and non-supply of the same
has hampered him from making an effective representation.
11. This non-supply of material had prevented the detenue from
making an effective and purposeful representation and failure in supplying
the same has rendered the detention unsustainable in law. In Sophia
Ghulam Mohd. Bham V. State of Maharashtra and others,AIR 1999
SC 3051, the Apex Court observed as under:-
"... The right to be communicated the grounds of detention
flows from Article 22(5) while the right to be supplied all the
material on which the grounds are based flows from the right
given to the detenu to make a representation against the order
of detention. A representation can be made and the order of
detention can be assailed only when all the grounds on which
the order is based are communicated the detenu and the
material on which those grounds are based are also disclosed
and copies thereof are supplied to the person detained, in his
own language..."
12. Similar view has also been fortified in "Thahira Haris Etc. Vs.
Govt. of Karnataka & ors.", AIR 2009 SC 2184.
13. There is unexplained delay on the part of the Government in
deciding the representation of the detenue and the fact that all the material
relied upon by the Detaining Authority has not been provided to him,
thus, this has resulted in infraction of the detenue's rights and this also
vitiates the order of detention.
14. In view of the aforesaid reasons, there is no need to advert to other
grounds raised in this petition. This petition is allowed and the detention
order No. DMs/PSA/49/2022 dated 18.10.04.2022, passed by the
District Magistrate, Srinagar under which detenue-Imran Qadir S/o
Ghulam Qadir Hazari, R/o Bulbul Lanker, Nawakadal, Srinagar is
under detention, is quashed. Accordingly, the respondents are directed
to release the detenue from the custody forthwith, if he is not required
in any other case.
15. Let the detention record be returned to learned counsel for the
respondents by the Registry forthwith.
(Sindhu Sharma)
Judge
SRINAGAR
07.04.2023
Yasmeen, Secy.
Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes
