Non-communication of the detenu's right to make a representation to the Detaining Authority until the Government's approval of the detention order invalidates the detention order.

Badar Durrez Ahmed, J.

1. This appeal is directed against the judgment dated 18.04.2017 passed by a learned Single Judge whereby the appellant's Habeas Corpus Petition No. 14/2017 was rejected.

2. The detenu (Tariq Ahmad Dar) was detained under detention order dated 22.12.2016 issued by the District Magistrate, Baramulla, in purported exercise of powers conferred by Clause (a) of Section 8 of the Jammu and Kashmir Public Safety Act, 1978. Prior to this detention order, the detenu is alleged to be involved in several criminal cases, including FIR No. 178/2016 and FIR No. 332/2016 registered at Police Station, Baramulla. FIR 332/2016 pertained to an alleged incident which took place on 18.02.2016 and the said FIR has been registered under Sections 307, 148, 149, 336, 353 of RPC. In respect of that FIR the detenu was arrested on 17.11.2016. However, he has been granted bail on 24.11.2016. Immediately thereafter the detenu was arrested in respect of FIR 178/2016 which was registered under Sections 147, 148, 149, 332, 336, 307, 353 of RPC.

3. While he was in custody, the said detention order dated 22.12.2016 was passed by the District Magistrate, Baramulla. The detention order was executed on 24.12.2016 at Central Jail, Kot Bhalwal, Jammu. The grounds of detention were served upon him on the same date along with other relied upon documents. A communication was also addressed to him whereby in purported compliance of Section 13 of the Jammu and Kashmir Public Safety Act, 1978, the detenu was informed that he could make a representation to the Government in the Home Department against the said detention order, if he so desires.

4. On 28.12.2016 the Government approved the detention order made by the District Magistrate, Baramulla.

5. Several pleas have been urged before us by the learned counsel for the appellant but we are only considering one of the said pleas.

6. The submission of the learned counsel for the appellant is that prior to Government's approval of the Detention order, which is to be done within 12 days of the detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978, the detaining authority also has the power to revoke the detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Section 19 of the J&K Public Safety Act, 1978. It was further submitted that till the Government's approval of the Detention order is granted, since the Detaining Authority had the power to revoke the detention order, a representation could have been made to the Detaining Authority for revoking the detention order. Therefore, according to the learned counsel for the appellant, it was incumbent upon the Detaining Authority to have informed the detenu that he could also make a representation to him (the Detaining Authority), if he so desired. It was further contended that since the Detaining Authority did not communicate to the detenu that such a representation could be made to the Detaining Authority, this in itself amounted to infraction of the provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 read with Article 22(5) of the Constitution of India. In support of his submission, he placed reliance on a Supreme Court decision in the case of State of Maharashtra and ors v. Santosh Shankar Acharya: ( 2000) 7 SCC 463, wherein pari meteria provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981, were considered by the Supreme Court. In that case also the Supreme Court came to the conclusion that non-communication of the fact that the detenu could make a representation to the Detaining Authority would constitute an infraction of a valid constitutional right guaranteed to the detenu under Article 22(5) of the Constitution of India and such failure would make the order of detention invalid.

7. On the strength of this decision of the Supreme Court,