Point of Law: Detention order quashed - Rights of Detenue - Detenu had a right to move a representation to the detaining authority till detention order is approved. In present case detaining authority has failed to inform detenu about his right to make a representation before it. This has resulted in infraction of a statutory and constitutional rights guaranteed to detenu - Detention of detenu is unjustified.

JUDGEMENT :

1. Petitioner has challenged the validity of Detention Order No. DMB/PSA/02 of 2020 dated 27.01.2020 passed by District Magistrate, Budgam, detaining Sajad Ahmad Bhat S/o Ghulam Hassan Bhat R/o Nagam Chadoora, Budgam under clause (a) of Section 8 of the Jammu and Kashmir Public Safety Act 1978 to prevent him from acting in any manner prejudicial to the security of the State..

2. The order of detention though challenged on various grounds, yet learned counsel for petitioner has vehemently urged that detenu was not informed that while making a representation against his detention to the Government, he had also a right to make a representation before the detaining authority, and therefore, his constitutional and statutory procedural safeguards have been violated. Another submission of learned counsel for petitioner is that grounds of detention are replica of police dossier.

3. Counter affidavit has been filed. Learned counsel for respondents has produced the detention record. He submits that the detenu was detained for his activities which were considered to be prejudicial to the security of the State. He was detained by virtue of detention order No. DMB/PSA/02 of 2020 dated 27.01.2020 passed by the District Magistrate, Budgan. All the procedural safeguards and constitutional guarantees were complied with by the detaining authority. The order of detention was issued after arriving at its requisite subjective satisfaction that his detention was imperative. All the material relied upon by the detaining authority was communicated to the detenu in the language he understands. The case of the detenu was also referred to the Advisory Board for its opinion, and the Board vide its opinion dated 18.02.2020 found that there was sufficient cause for the detention of the detenu. Pursuant to the opinion of the Board, the Government vide order No. Home/PB-V/552 of 2020 dated 26.02.2020 has confirmed the order of detention.

4. I have heard learned counsel for parties and considered the matter.

5. Perusal of detention record would reveal that while passing impugned order of detention, a communication bearing no. DMB/PSA/2020/02 dated 27.01.2020, was addressed by detaining authority to detenu, informing him to make a representation to the Government against the detention order. Thus, it becomes evident from the detention record that detenu has not been informed about his right to make the representation to the detaining authority and time for making such a representation has also not been given. It is imperative upon the detaining authority to inform the detenu that he has a right to make a representation to the detaining authority as well as to the Government and not only that he is to be informed about the time within which such representation is to be made. This right of the detenu is guaranteed under Article 22(5) of the Constitution of India.

It is pertinent to mention here that prior to Government’s approval of detention order, which is to be done within 12 days of detention order, in terms of Section 8 (4) of the J&K Public Safety Act, 1978 (for short “Act of 1978”) detaining authority also has power to revoke 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 Act of 1978. Till the Government’s approval to 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 detention order. It was incumbent upon detaining authority to have informed detenu that he could also make a representation to detaining authority, if he so desired. Since detaining authority did not communicate to detenu that such a representation could be made to detaining authority, this in itself amounted to infraction of provisions of Section 13 of the Act of 1978 read with Article 22(5) of the Constitution of India. Reliance in this regard is p