Jammu & Kashmir High Court - Srinagar Bench
Tufail Ahmad Malik vs Ut Of J&K & Others on 21 February, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 10.02.2025
Pronounced on: 21.02.2025
HCP No.153/2024
TUFAIL AHMAD MALIK ...PETITIONER(S)
Through: -Mr. Wajid Haseeb, Advocate
Vs.
UT OF J&K & OTHERS ...RESPONDENT(S)
Through: -Mr. Syed Musaib, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1) Through the medium of present petition, the petitioner has assailed
detention order bearing No.07/DMA/PSA/DET/2024 dated 01.04.2024,
issued by District Magistrate, Anantnag (for brevity "detaining authority").
In terms of the aforesaid order, Tufail Ahmad Malik (" the detenue") has
been placed under preventive detention and lodged in Central Jail,
Kothbalwal, Jammu, in order to prevent him from acting prejudicially to
the security of the State/UT of J&K.
2) The petitioner has contended that the Detaining Authority has passed
the impugned detention order mechanically without application of mind as
the allegations mentioned in the grounds of detention have no nexus with
the detenue and that the same have been fabricated by the police in order to
justify its illegal action of detaining the detenue. It has been contended that
the grounds of detention are vague, non-existent on which no prudent man
can make a representation against such allegations. It has been further
contended that the procedural safeguards have not been complied with in
the instant case as whole of the material that formed basis of the impugned
detention order has not been supplied to the petitioner. It has also been
contended that the representation filed by the petitioner has not been
considered by the respondents.
3) The respondents have resisted the petition by filing their reply
affidavit, wherein they have contended that the activities of the detenue are
highly prejudicial to the security of the State. It is pleaded that the detention
order and grounds of detention along with the material relied upon by the
detaining authority were handed over to the detenue and the same were read
over and explained to him. It has been further contended that the detenue
was informed that he can make a representation to the government as well
as to the detaining authority against his detention. It is also averred in the
reply affidavit that all statutory requirements and constitutional guarantees
have been fulfilled and complied with by the detaining authority and that
the order has been issued validly and legally. The respondents have
produced the detention record to lend support to the stand taken in the
counter affidavit.
4) I have heard learned counsel for parties and perused the record.
5) Learned counsel for the petitioner, while seeking quashment of the
impugned order, projected various grounds but his main thrust during the
course of arguments was on the ground that the representation filed by the
petitioner against the impugned order of detention has not been considered
by the respondents thereby violating his statutory and constitutional rights.
6) So far as the ground of challenge urged by learned counsel for the
petitioner is concerned, a perusal of the detention record reveals that the
representation of the petitioner dated 12.04.2024 has been rejected by the
government and an intimation in this regard has been communicated by
Deputy Secretary to Government, Home Department, to the District
Magistrate, Anantnag in terms of communication No.Home/PB-V/160-
2024(7449408) dated 27.06.2024. In the said communication, the
respondents have admitted receipt of the representation of the petitioner.
Thus, it is admitted by the respondents that they have received the
representation of the petitioner against the impugned order of detention.
The representation has been received by the respondents probably in the
third week of April, 2024, which is clear from communication dated
27.04.2024, that forms part of the detention record. The question that arises
for determination is, as to whether consideration of representation after
about two months from the date of receipt of the same satisfies the
requirement of law.
7) The aforesaid question has been answered by the Supreme Court in
the case of "Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur
and others" (2021) 20 SCC 98. It would be apt to refer to observations
made by the Supreme Court in para 47 of the judgment, which are
"47. By delaying its decision on the representation, the State
Government deprived the detenu of the valuable right which emanates
from the provisions of Section 8(1) of having the representation being
considered expeditiously. As we have noted earlier, the communication
of the grounds of detention to the detenu "as soon as may be" and the
affording to the detenu of the earliest opportunity of making a
representation against the order of detention to the appropriate
government are intended to ensure that the representation of the
detenu is considered by the appropriate government with a sense of
immediacy. The State Government failed to do so. The making of a
reference to the Advisory Board could not have furnished any
justification for the State Government not to deal with the
representation independently at the earliest. The delay by the State
Government in disposing of the representation and by the Central and
State Governments in communicating such rejection, strikes at the
heart of the procedural rights and guarantees granted to the detenu. It
is necessary to understand that the law provides for such procedural
safeguards to balance the wide powers granted to the executive under
the NSA. The State Government cannot expect this Court to uphold its
powers of subjective satisfaction to detain a person, while violating the
procedural guarantees of the detenu that are fundamental to the laws
of preventive detention enshrined in the Constitution."
8) From the foregoing analysis of law on the subject, it is manifest that
delaying of decision on the representation of the detenue amounts to an
infringement of a valuable right which is available to a detenue in terms of
provisions contained in Section 13 of the Jammu & Kashmir Public Safety
Act, which makes it obligatory on the detaining authority to communicate
to the detenue the grounds on which the order of detention has been made
within a maximum period of ten days from the date of detention and to
afford him the earliest opportunity of making representation against the
order of detention. The purpose of furnishing the grounds of detention
within a maximum period of ten days is to enable a detenue to make a
representation against the order of detention at the earliest opportunity.
Thus, a duty is cast upon the detaining authority or the government to
consider the said representation at the earliest opportunity. Failure to decide
the representation of a detenue within a reasonable time in an expeditious
manner strikes at the valuable right of a detenue emanating from the
provisions of Section 13 of the Jammu & Kashmir Public Safety Act.
9) In the present case, the respondents have received the representation
of the petitioner in the third week of April, 2024 but the same has been
decided by them only on 27.06.2024. This slackness on the part of
respondents to take a decision on the representation of the petitioner renders
the impugned order of detention illegal.
10) Apart from the above, in the present case, the respondents have not
placed on record anything to show that the order of rejection of
representation was conveyed to the petitioner. The communication dated
27.06.2024 is an inter-departmental communication between Home
Department and District Magistrate, Anantnag. It is not forthcoming from
the record produced by the respondents as to whether the result of the
representation has been conveyed to the petitioner. The Supreme Court in
Sarabjeet Singh Mokha's case (supra) while dealing with the effect of
failure to communicate the result of the representation has held that failure
in timely communication of the rejection of the representation is a relevant
factor for determining the delay that the detenue is protected under Article
22(5). It has been further held that failure of the government to
communicate rejection of detenue's representation in a time bound manner
is sufficient to vitiate the detention order.
11) For the foregoing reasons, the petition is allowed and the impugned
order of detention is quashed. The detenue is directed to be released from
preventive custody forthwith provided he is not required not required in
connection with any other case.
12) The detention record be returned to the learned counsel for the
respondents.
(Sanjay Dhar)
Judge
SRINAGAR
21 .02.2025
"Bhat Altaf-Secy"
Whether the order is speaking: Yes/No
