Non-communication of the detenue's right to make an effective representation to the Detaining Authority until the order of detention is approved by the Government constitutes a violation of the detenue's Constitutional right under Article 22(5) of the Constitution of India.

JUDGMENT :

1. Through the medium of instant petition, the petitioner (hereinafter referred to as the 'detenue') has challenged the order of detention bearing No. DMR/INDEX-02 of 2020, dated 18.11.2020 passed by respondent No. 2 (hereinafter referred to as the 'detaining authority') whereby the detenue has been detained in terms of the provisions of J&K Public Safety Act, 1978 (hereinafter referred to as the 'Act').

2. The detenue has challenged the impugned order of detention on the grounds that he has not been supplied the grounds of detention and the material in support thereof in the language that is understood by him as he is an illiterate person; that he has not been informed about his right to make an effective representation before the detaining authority against the impugned detention order; that there is complete lack of application of mind on the part of the detaining authority while framing the grounds of detention, inasmuch as the same are more or less xerox copy of the dossier submitted by the police; that the detenue's father had died in the year 1999 and in spite of this, the detaining authority has forwarded the impugned order of detention to his father which shows complete non-application of mind on the part of the detaining authority and that the Statutory and the Constitutional safeguards required to be followed while passing an order of preventive detention, have not been complied with in the instant case.

3. The petition has been resisted by the respondents by filing a counter affidavit thereto. In their counter affidavit, the respondents have submitted that all the Statutory and the Constitutional safeguards have been taken care of while passing the impugned order of detention and that all the material including the copies of FIR etc., mention whereof is made in the grounds of detention, have been furnished to the detenue. It has been further submitted that the impugned order of detention stands confirmed by the Advisory Board. It has also been averred that the detaining authority, while passing the impugned order of detention, has minutely scrutinised the material and applied its mind. The respondents have also produced the detention record to support their version.

4. I have heard learned counsel for the parties and perused the material on record including the detention record.

5. During the course of arguments, learned counsel for the detenue confined his arguments to the contention that the detenue, in the instant case, has not been informed about his right to make an effective representation to the Detaining Authority against the impugned order of detention, thereby violating the Constitutional right guaranteed to him under Article 22 (5) of the Constitution of India.

6. A perusal of impugned order of detention shows that it has been passed on 18.11.2020 by respondent No. 2 in exercise of its power under Section 8 of J&K Public Safety Act.

7. The covering letter dated 18.11.2020 to the impugned order of detention gives an information to the detenue that he can make a representation before the Government against the impugned order of detention, but it does not, at all, bear any reference to the fact that the detenue has a right to make representation to the Detaining Authority itself.

8. In the counter affidavit, the respondents have categorically submitted that the detenue, pursuant to the impugned order of detention, was detained on 18.11.2020 and the order of detention was approved by the Government on 27.11.2020 which means that from 18.11.2020 to 27.11.2020, it was open to the petitioner to make a representation to the Detaining Authority against the impugned order of detention.

9. Section 19 of J&K Public Safety Act provides that without prejudice to the provisions of Section 21 of the J&K General Clauses Act, a detention order may, at any time, be revoked or modified by the Government. Section 21 of J&K General Clauses Act provides that power to make an order includes the power to revoke or modify it, w