The central legal point established in the judgment is that the non-consideration of a detenu's representation constitutes a violation of the constitutional right guaranteed under Article 22 of the Constitution of India, and any unexplained delay in considering the representation renders the detention illegal.

JUDGMENT

Moksha Khajuria Kazmi, J. - Through the medium of instant writ petition, quashment of Order No. 46 DMB/PSA/2022 dated 09.04.2022, passed by the respondent No. 2- District Magistrate, Baramulla (hereinafter called 'Detaining Authority') in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, in terms whereof the brother of the petitioner namely, Faisal Hassan Naikoo S/O Ghulam Hassan Naikoo R/O Qazi Hamam, Tehsil and District, Baramulla (for short 'detenue') was ordered to be detained and lodged in Central Jail Kotebalwal, Jammu, has been sought on the grounds taken in the memo of the petition.

2. Though the detention order has been challenged on several grounds, but the main ground taken by the petitioner is that the representation filed against the detention order has not been considered by the respondents till date. It is submitted that because of non-consideration of the representation, the detention order is liable to be quashed. Copy of the representation is annexed with the writ petition.

3. The respondents in their counter have defended the order of detention, stating therein that the detaining authority after being satisfied on the basis of the material available including the dossier submitted by Senior Superintendent of Police, Baramulla, it had become necessary to prevent the detenue from acting in any manner prejudicial to the 'maintenance of security of the State' to place him under preventive detention. It is stated 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 and the rights guaranteed to the detenue under the Constitution are protected. It is further submitted that activities of the detenue are highly prejudicial to the security of the Union Territory of J&K and, therefore, there was no option left to the detaining authority, but to order detention of the detenue under the Act. It is also urged that the grounds of detention sufficiently connect the detenue with the activities which are highly prejudicial to the security of the UT of J&K, as such, the detention of the detenue is legal.

4. With regard to the allegation of non-consideration of the detenu's representation, it is stated by the respondents that the detenue was informed about his right to make a representation to the detaining authority or the Government. However, no whisper has been made in the counter affidavit whether the representation has been made or not by the detenue.

5. Heard learned counsel for the parties and perused the available material including the detention record.

6. It has been contended that representation has been filed by the brother of the detenue before the detaining authority, copy whereof is annexed as Annexure-VI to the writ petition but despite lapse of more than seven months, the representation has not been considered by the detaining authority.

7. From the perusal of the detention record, produced by Ms. Insha Rashid, Government Advocate, nothing reveals in respect of the receipt or disposal of the representation. It is thus, evident that representation filed by the detenue through his broher, i.e, petitioner herein in the month of April. 2022, has not been considered by the respondents so far. The execution report of the detention record reveals that dossier has not been provided to the detenue when the detention warrant was executed at Central Jail Kot Bhalwal, Jammu.

8. The respondents were under bounden duty to furnish all the documents to the detenue, so that an effective representation can be filed by the detenue to put forth his stand against the detention order. However, the respondents have failed to provide the requisite material to the detenue but despite that as is evident from the material available before the Court, detenue has made a representation but same has not been disposed