Jammu & Kashmir High Court - Srinagar Bench
Atta Mohd Khan vs Union Territory Of J&K &Ors on 9 May, 2023
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on:13 .04.2023
Pronounced on: 09 .05.2023
WP(Crl.) No.285/2022
Atta Mohd Khan ...PETITIONER(S)
Through: - Mr. Kaiser Ali Advocate.
Vs.
UNION TERRITORY OF J&K &ORS. ...RESPONDENT(S)
Through: - Mr. Sajad Ashraf G.A.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By the instant petition, legality and veracity of the detention
order dated 13.04.2022, issued by District Magistrate, Kupwara (for
brevity "Detaining Authority") is challenged. In terms of the said order,
Shri Atta Mohd Khan son of Amanullah Khan resident of Halmatpora
Check Kupwara (for short "detenu") has been placed under preventive
detention and lodged in Central Jail, Kotbhalwal, Jammu.
2 The petitioner has contended that the Detaining Authority
has passed the impugned detention order mechanically without
application of mind, inasmuch as the detenu was already admitted to bail
in one of the FIRs, mention whereof has been made in the grounds of
detention. It has been further contended that the Constitutional and
procedural safeguards have not been complied with in the instant case. It
has been further urged that the material, which formed basis of the
grounds of detention and the consequent order of detention, has not been
provided to the detenu. It has also been contended that, though the
petitioner made a representation against the impugned order of
detention, yet the same was not considered by the respondents.
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 security of the State. It is pleaded
that the impugned detention order has been passed validly and after
following all norms and procedural safeguards. It has also been
contended that the detention order and grounds of detention were
handed over to the detenue and same were read over and explained to
him and the whole material relied upon by the detaining authority has
been furnished to the detenue. It is averred that the grounds urged by
the petitioner are legally misconceived, factually untenable and without
any merit. The respondents have produced the detention records in
order to buttress the contentions raised in the counter affidavit.
4 I have heard learned counsel for parties and perused the
detention record.
5 Although, a number of grounds have been raised by the
learned counsel for the detenu, yet during the course of arguments, the
main thrust was on the contention that the representation filed by the
detenu 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 the detenu is liable to be quashed. Copy of
the representation stated to have been submitted by the detenu to the
respondents along with postal receipt has been placed on record with the
writ petition.
6 With regard to the submission of representation by the
detenu and its non-consideration by the Detaining Authority, there is no
averment in the counter affidavit. However, from a perusal of
communication dated 28.05.2022 addressed by the District Magistrate,
Kupwara to the Financial Commissioner, Home Department, J&K
Srinagar which is available in the detention record, it transpires that the
District Magistrate, Kupwara had received the representation from the
detenu. Another communication addressed by the Deputy Secretary to
the Government, Home Department to Special Director General of
Police CID, J&K, seeking report on the representation of the detenu, is
also available in the detention record.
7 Thus, it is evident that the representation of the detenu has
been received by the respondents. However, there is nothing in the
detention record or in the counter affidavit filed by the respondents to
indicate the fate of this representation. Thus, the contention of the
detenu, that his representation has not been considered by the
respondents, appears to be well founded.
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.
Everyday delay in dealing with the representation has to be explained
and the explanation offered must indicate that there was no slackness or
indifference.
9 In Tara Chand vs State of Rajasthan and others, 1980 (2)
SCC 321, the 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. Again 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.
10 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 to the detenu under Article
22 of the Constitution and it also amounts to failure of the respondents to
discharge their statutory functions. Therefore, for this reason alone, the
impugned order of detention passed against the detenu is liable to be
quashed.
11 Accordingly, the petition is allowed and the impugned
order dated 13.04.2022 passed by the District Magistrate, Kupwara is
quashed. The detenu is directed to be released from the preventive
custody forthwith, provided he is not required in connection with any
other case.
12. Record of detention be returned to the learned counsel for
the respondents.
(Sanjay Dhar)
Judge
09.05.2023
Sanjeev
Whether the order is speaking: Yes
Whether the order is reportable: Yes
