The central legal point established in the judgment is the obligation of the Government to consider the detenu's representation as early as possible, as guaranteed under Article 22(5) of the Constitution of India.

JUDGMENT

Moksha Khajuria Kazmi, J. - In the instant Habeas Corpus petition, the petitioner has assailed the detention order No. DMB/PSA/2022/32 dated 27.06.2022, passed by respondent No. 2- District Magistrate, Budgam (for short 'the detaining authority'), whereby one Abid Ahmad Dar S/O Noor Mohd. Dar R/O Dalipora Chadoora, Budgam, (for short detenue), has been detained under the provisions of J&K Public Safety Act, 1978.

2. Though the petitioner has challenged the detention order on various grounds, but the main ground of challenge to the non-consideration of the representations filed against the detention order. It is averred that because of non-consideration of the representations, the detention order is liable to be quashed. Copy of the representations having been received by the respondents is annexed with the writ petition.

3. The respondents have filed their objections and have defended the order of detention, stating therein that the order of detention was passed by the detaining authority after being satisfied on the basis of the material available including the dossier submitted by Senior Superintendent of Police, Budgam, that it was necessary with a view to prevent the detenue from acting in any manner prejudicial to the security of the State to place the detenue under preventive detention. It is submitted that the detention of the dentenu has been ordered strictly in accordance with the provisions of J&K Public Safety Act, 1978 (for short 'the Act') and the procedural safeguards prescribed under the provisions of the Act, have strictly been followed in the instant case.

4. It is further stated that from the grounds of detention it would transpire that the activities of the detenue are highly prejudicial to the security of the State and, therefore, there was no option left to the detaining authority, but to order detention of the detenue under the Act. It is also submitted that the grounds of detention sufficiently connect the detenue with the activities which are highly prejudicial to the security of the State, as such, the detention of the detenu is legal.

5. With regard to the allegation of non-consideration of the detenu's representations, it is stated in the counter affidavit that the detenue did not make any representation in respect to his detention order.

6. I have heard learned counsel for the parties and perused material made available including the detention record.

7. It is quite evident that representations have been made by the detenue against his detention which have been received by the respondents, but have not been considered till date, as the postal receipts placed on record would show. In these circumstances, this Court is left with no option, but to accept the stand of the petitioner that the detenue has made representations against his detention, but the same has not been considered. It is the bounden duty of the detaining Authority or the Government, as the case may be, to consider the representation of the detenue and pass appropriate orders thereon.

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. Each day's delay in dealing with the representation has to be explained and the explanation offered must be reasonably indicating that there was no slackness or indifference.

9. In Tara Chand vs State of Rajasthan and others, 1980 (2) SCC 321, the Hon'ble 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.

10. The Supreme Court in another case of Rahmatullah vs State of Bihar, AIR 1981 SC 2069 has held that clause (5) of Article 2